Flux européens

GN (Motif de refus fondé sur l’intérêt supérieur de l’enfant)
Espace de liberté, sécurité et justice
Avocate générale Ćapeta : l’exécution d’un mandat d’arrêt européen délivré à l’encontre d’une mère d’enfants en bas âge peut être refusé lorsque cela est dans l’intérêt supérieur de l’enfant

Propriété intellectuelle et industrielle
Avocate générale Ćapeta : un accord international dont l’effet direct est exclu en raison de son caractère spécifique ne peut pas non plus avoir d’effet interprétatif
Advocate General Ćapeta: An international agreement that is denied direct effect due to its specific nature cannot have interpretative effect either

G GmbH
Rapprochement des législations
Licenciements collectifs : l’obligation de l’employeur de communiquer des informations aux autorités à un stade précoce d’un tel projet n’a pas pour finalité de conférer une protection individuelle aux travailleurs

Commission / CK Telecoms UK Investments
Concurrence
Le Tribunal doit de nouveau statuer sur la légalité de l’interdiction par la Commission du rachat de Telefónica Europe (O2) par Hutchison 3G UK (Three)

I have reported before on the European Commission’s reasoning to refuse to support the UK’s accession to the Lugano Convention. Leigh Day and Daniel Leader in particular report here on a recent initiative of note: a letter by Dr Yeophantong, Chair-Rapporteur of the Working Group on the issue of human rights and transnational corporations and other business enterprises, has written to the European Commission asking it to explain its refusal to endorse the UK request to join.

Dr Yeophantong suggests the EC recalcitrance “may limit the legal accountability of UK domiciled businesses’ behaviour outside the UK, for which she refers in particular to the expected trend post Brexit, for even UK incorporated business to try and deflect jurisdiction in the UK courts viz claims pursuing these corporations for their or others’ business and human rights record outside the UK. The vehicle for this to happen is of course forum non conveniens. As readers know (otherwise try ‘CSR’ or ‘forum non’ or ‘Article 34’ in the search box), the UK have for a long time applied forum non conveniens, a mechanism not known in the Brussels regime other than in the reduced form of Articles 33-34 Brussels Ia, and not known at all in the Lugano Convention.

As Leigh Day summarise, Dr Yeophantong posed six questions in her letter, including asking Ms Von der Leyen, Commission President:

• • To explain how its refusal to allow the UK to join the treaty conforms to the EU’s support for the UN Guiding Principles;
  • For clarification on the processes within the EU which have led to the UK being refused accession to the Lugano Convention;
  • What process will be used to consider the UK’s request to re-join Lugano, and whether the European Commission is the competent authority to oversee this process; and
  • For an explanation how the Hague Conventions can provide the same protection as the Lugano Convention from the behaviour of UK businesses operating in other countries.

At first sight it may seem odd to ask the EU to justify its actions vis-a-vis a mechanism (forum non) that is part of all of the UK’s common laws: rather, one might say, the obvious target is UK law itself. However politically speaking, it is most certainly correct that EU support for UK Lugano accession would with one swoop pull the carpet from underneath an important mechanism for UK corporations to try and avoid discipline for human rights abuses abroad. This is arguably in line with the EU’s committments under human rights law. Moreover, there is as I suggested here, inconsistency in the Commission’s approach to external judicial cooperation policies of relevance to Lugano.

To be continued.

Geert.

EU private international law, 3rd ed. 2021, Heading 1.7.

Working Group is concerned that the EC’s refusal to the UK’s accession to the Convention “may limit the legal accountability of UK domiciled businesses’ behaviour outside the UK https://t.co/MLCgbWIUlr

— Geert Van Calster (@GAVClaw) July 4, 2023

IFIC Holding / Commission
Politique commerciale
Le Tribunal confirme les décisions de la Commission autorisant Clearstream Banking AG à se conformer aux sanctions américaines imposées à l’Iran

Cunsorziu di i Salamaghji Corsi - Consortium des Charcutiers Corses e.a. / Commission
Agriculture
Demandes d’enregistrement de dénominations en tant qu’IGP : la Commission n’est pas liée par l’appréciation préalable des autorités nationales

See here for one of the questions I asked one cohort of students in this term’s exam, the other group got this question:

In Case C-81/23 FCA Italy and FPT Industrial, an Austrian court has asked the CJEU the following Q: (I simplified the Q for exam purposes)

Must point 2 of Article 7 of [Brussels Ia] be interpreted as meaning that, in an action for tortious liability against the developer (domiciled in Member State A, Italy) of a diesel engine with a prohibited defeat device…, the “place where the harmful event occurred or may occur” in a case where the vehicle was bought by the applicant domiciled in Member State B (in this case: Austria) from a third party established in Member State C (in this case: Germany) is a) the place where the contract was concluded; b) the place where the vehicle was delivered, or c) the place where the physical defect constituting the damage occurred and, therefore, the place where the vehicle is normally used?

‘Prohibited defeat devices’ are the kind of devices which led for instance to the Volkswagen dieselgate scandal. Their use leads to an artificially low fuel consumption in test circumstances, meaning in reality a car consumes more than the tests indicate. Once this was exposed, the second hand value of these cars plummeted, and owners had been spending much more on petrol for the car than they would have expected.

For your info, under Austrian law, ‘purchase’ (in the sense of acquisition of ownership) consists of the transaction that creates the relationship of obligation (title) and the dispositive transaction (procedure, in particular transfer). In the event of a discrepancy between the place of conclusion of the contract and the place of transfer, ownership is acquired only at the place of the transfer of the movable property. By contrast, under other national laws, French law for example, ownership is transferred, as a general rule, as soon as the contract is concluded.

How do you suggest the CJEU respond to this question? Argue with reference inter alia to relevant CJEU case-law.

I would have expected students to reply along the following lines.

Firstly, as always with these essay questions as indeed with the CJEU’s approach to same, they should remind themselves of the main CJEU lines of interpretation of the relevant provisions of in this case, here: Brussels Ia and in particular Article 7(2). The principles of autonomous interpretation (seeing as A7(2) is engaged reference to CJEU Melzer would have been obvious), of predictability; the need restrictively to apply variations (here: A7(2) forum delicti) to A4 actor sequitur forum rei while at the same time honouring the spirit of CJEU Bier and its distinction between locus delicti commissi and locus damni.

Further on the latter, the question clearly engages with Bier’s locus damni rather than locus delicti commissi (CJEU Kainz useful reference for the latter, and (see also below) lack of clarification of locus delicti commissi in Volkswagen).

Many of the students of course would have heard the echo of CJEU Volkswagen, and reference should have been made to [30] ff ‘place of purchase’ by the downstream acquirer as the way in which the Court identifies locus damni. Here, things get messy (as A7(2) often does) for as the reference indicates, there is no ius commune on the place of purchase, neither European harmonisation. The CJEU bumping into the limits of harmonisation (my students know this as the ‘Truman Show’; CJEU Tessili v Dunlop and Jaaskinen AG in Maison du Whisky /Corman-Collins good references) would have been a good comment to make, with answer a) perhaps having the upper hand (although at this stage I am less interested in a, b or c and more in clear structure and plan of attack; proper reference to case-law; and discussion of the general principles).

Geert.

EU Private International Law, 3rd ed. 2021, 2.460.

I asked one group of my students of private international law in the most recent exam session the following question:

In Case C-429/22 VK v N1 Interactive Ltd, an Austrian court has asked the CJEU the following Q:

Is Article 6(1) of [the Rome I Regulation] to be interpreted as meaning that the law of the country in which the consumer has his or her habitual residence is not applicable if the law applicable under Article 4 of the Rome I Regulation, the application of which the applicant seeks and which would be applicable if the applicant lacked consumer status, is more favourable to the applicant?

‘VK’ is a natural person and he is the applicant.

How do you suggest the CJEU should respond to this question? Argue with reference inter alia to relevant CJEU case-law.

I would have expected them to answer along the following lines.

Overall (and perhaps mostly meant for consumption by the students; forgive the rant therefore) of course it is disappointing to see how many students, despite repeated calls to the contrary and despite having 1 hour and 25 minutes to answer the question with a 2-page essay, omit to bring structure to their answer, with an introduction clarifying the plan of attack, a main body arranged alongside preferably underlined or highlighted main arguments and authority, and a conclusion. Instead they reply with a laser shoot of possible approaches without any landscaping in the text.

Now, to the case at hand. Firstly, one should point to the Regulation’s overall goal of predictability (a general theme of course in EU private international law), as illustrated by recital 16 Rome I, yet also, for the specific issue of the protected categories, its goal to protect weaker parties (illustrated by recital 23).

Recital 16 itself indicates the ordinary variation the Regulation allows to the topic of predictability, seeing as it reads

To contribute to the general objective of this Regulation, legal certainty in the European judicial area, the conflict-of-law rules should be highly foreseeable. The courts should, however, retain a degree of discretion to determine the law that is most closely connected to the situation.

That extract should have triggered the student’s attention to the various instances in the Regulation where a court may indeed correct the ordinarily applicable law by reference to a ‘most closely connected law’. In particular, attention should have been paid to the contrast between A6 Rome I, the consumer title, which does not have a ‘most closely connected test’, and that other category of protected parties, employees, who in A8(4) do have a most closely connected exception. A contra legem reading of a ‘most closely connected test’ in A4 would seem to be out off the question and even if it were not out off the question, the most closely connected law need not necessarily reflect the one more favourable to the consumer. This is also illustrated by CJEU Schlecker where the criteria for this determination were not inspired by seeking the greatest protection for the employee.

Students pushing for the alternative (the CJEU might go contra legem in the interest of consumers), would have certainly had to refer to CJEU authority supporting this and would have been most probably been referring to case-law under Brussels Ia to make that point (ex multi in particular Commerzbank (a Lugano case) and Markt24), in turn also referring to recital 7 Rome I for the need for ‘consistency’ between Brussels Ia and Rome I.

Reference can also be made to the protected categories provisions being ‘insulated’, self-sufficient Articles. This is particularly the case of course for Brussels Ia, slightly less so perhaps for Rome I seeing as the latter’s provisions for the protected categories do cross-refer to Article 3.

All in all the most likely direction of travel for the judgment is likely to be a reply in the negative. Finally, however, a good reply would have included an acknowledgment that this might not deter the cleverly litigating consumer from dipping its hands into Article 4 anyways, by reverse engineering or arguing his /her claim as one that does not engage the consumer title: suggesting professional use (with pro inspiratio reference to CJEU Gruber), for instance.

Geert.

EU Private International Law, 3rd ed. 2021, Heading 3.2.5.

 

 

Dyson e.a. / Commission
Droit institutionnel
Selon l’avocate générale Ćapeta, en retenant le test sur réservoir vide pour les aspirateurs, la Commission a violé la directive relative à l’étiquetage énergétique de manière suffisamment caractérisée

Austrian Airlines (Premiers soins à bord d’un aéronef)
Transport
Accidents à bord d’un avion : la responsabilité sans faute des compagnies aériennes prévue par la convention de Montréal s’étend aux premiers soins inadéquats dispensés à bord

Bundesamt für Fremdenwesen und Asyl (Réfugié ayant commis un crime grave)
Espace de liberté, sécurité et justice
Révocation et refus du statut de réfugié : la Cour de justice précise les conditions d’adoption d’une telle mesure à l’égard du ressortissant d’un pays tiers condamné pour un crime

A late note on ClientEarth v Shell Plc & Ors (Re Prima Facie Case) [2023] EWHC 1137 (Ch) in which Trower J refused to give permission to Client Earth (qualitate qua Shell shareholders) to bring a derivative claim in lieu of Shell, against the corporation’s directors.

The breaches alleged in ClientEarth’s claim are said to arise out of the Directors’ acts and omissions relating to Shell’s climate change risk management strategy as described in relevant corporate documentation. It also alleges breaches relating to the Directors’ response to the order made by the Hague District Court in Milieudefensie v Royal Dutch Shell plc which I reviewed here.

[3]:

The reason the legislation imposes an obligation on a shareholder to obtain permission to bring a derivative claim is that such a claim is an exception to one of the most basic principles of company law: it is a matter for a company, acting through its proper constitutional organs, not any one or more of its shareholders, to determine whether or not to pursue a cause of action that may be available to it. ClientEarth must therefore show that the limited and restricted circumstances in which it is appropriate for the court to authorise it, as a shareholder of Shell, to continue a derivative action against the Directors for breach of duty are present.

Current stage of the process is said to provide a filter for “unmeritorious” or “clearly undeserving” cases, with importantly [5] the applicant having to show that its application establishes a prima facie case before a substantive hearing is held. The substantive application for permission is set out in s.263 of CA 2006, as to which:

i) s.263(2) provides that an application for permission must be refused if the court is satisfied (a) that a person acting in accordance with his duty to promote the success of the company would not seek to continue the claim or (b) / (c) that any act or omission from which the cause of action arises has been authorised or ratified by the company before or since it occurred;

ii) s.263(3) makes provisions for a number of discretionary factors which the court must take into account in reaching its decision – they are (a) whether the member concerned is acting in good faith in seeking to continue the claim, (b) the importance which a person acting in accordance with his duty to promote the success of the company would attach to continuing it, (c) / (d) whether any act or omission from which the cause of action arises would be likely to be authorised or ratified by the company, (e) whether the company has decided not to pursue the claim and (f) whether the act or omission in respect of which the claim is brought gives rise to a cause of action that the member could pursue in his own right rather than on behalf of the company; and

iii) the court is also required by section 263(4) of CA 2006 to have particular regard to any evidence before it as to the views of members of the company who have no personal interest, direct or indirect, in the matter.

[14] The duties relied on by ClientEarth include two of the statutory general duties owed by the Directors to the Company pursuant to s.170 of CA 2006: the duty to promote the success of the Company (s.172 of CA 2006) and the duty to exercise reasonable care, skill and diligence (s.174 of CA 2006s).

[16] The duties owed by the Directors are also said to include what are pleaded as six necessary incidents of the statutory duties “when considering climate risk for a company such as Shell”. These are said by ClientEarth to be:

i) a duty to make judgments regarding climate risk that are based upon a reasonable consensus of scientific opinion;

ii) a duty to accord appropriate weight to climate risk;

iii) a duty to implement reasonable measures to mitigate the risks to the long-term financial profitability and resilience of Shell in the transition to a global energy system and economy aligned with the global temperature objective of 1.5°c under the Paris Agreement on Climate Change 2015 (“GTO”);

iv) a duty to adopt strategies which are reasonably likely to meet Shell’s targets to mitigate climate risk;

v) a duty to ensure that the strategies adopted to manage climate risk are reasonably in the control of both existing and future directors; and

vi) a duty to ensure that Shell takes reasonable steps to comply with applicable legal obligations.

[21] ClientEarth is not proposing any specific strategy which it requires the Board to adopt. Instead, it alleges that the Board’s current approach falls outside the range of reasonable responses to climate change risk. [26] ClientEarth needs to show that that the Directors’ current approach falls outside the range of reasonable responses to climate change risk and will cause harm to Shell’s members.

Conflicts lawyers will be interested in the two additional duties which are referred to as the further obligations [22]. They are that, pursuant to the common law of England and Dutch law respectively, a director who is aware of a court order is under a duty to take reasonable steps to ensure that the order is obeyed. This is pleaded as a precursor to ClientEarth’s allegation that Shell has failed to comply with the Dutch Order. Shell argue that there is no recognised duty owed by directors to a company in which they hold office to ensure that they comply with the orders of a foreign court and Trower J agrees there is no such authority:  [23] he holds that

while a director of a company is under a legal obligation to take reasonable steps to ensure that an order made by an English court is obeyed, the case on which ClientEarth relied (Attorney-General for Tuvalu v Philatelic Distribution Corpn [1990] 1 WLR 926 at 936E-F) is not authority for the proposition that there is any such duty owed by the directors to the company itself, which is separate or distinct from the duties they owe to the company as codified in Part 10 Chapter 2 of CA 2006. 

and [24]

the nature and extent of the Directors’ duties to Shell are governed by English law as the law of Shell’s incorporation, as to which the underlying point is the same. There is no established English law duty separate or distinct from the general duties owed by the Directors to Shell under CA 2006, which requires them to take reasonable steps to ensure that the order of a foreign court is obeyed, let alone to ensure compliance with that order. It follows that, even if as a matter of Dutch law, the Directors were to owe duties to Shell to take reasonable steps to ensure that the Dutch Order is obeyed, that would be irrelevant to the claims sought to be made in these proceedings, governed as they are by English law. So far as Shell’s potential claims against the Directors are concerned, the only question is whether their response to the Dutch Order rendered them in breach of an English law duty.

No reference here to anything like mutual trust such as by the Dutch courts in Heirs to the Sultan of Sulu v Malaysia.

[25] the judge refers to Lord Wilberforce in Howard Smith Ltd v Ampol Ltd [1974] AC 821 at 832E/F:  “There is no appeal on merits from management decisions to courts of law: nor will courts of law assume to act as a kind of supervisory board over decisions within the powers of management honestly arrived at.” A classic reminder of merits review v judicial review, in other words.

Then follows a discussion of the evidence (I do not think CPR would have allowed expert evidence at this stage nb so the evidence is provided by in-house-experts) put to the court by ClientEarth and the long and the short of it is the judge’s finding [47] that

“the evidence does not support a prima facie case that there is a universally accepted methodology as to the means by which Shell might be able to achieve the targeted reductions referred to in the ETS. This means that it is very difficult to treat what is said as providing a proper evidential basis for alleging that no reasonable board of Directors could properly conclude that the pathway to achievement is the one they have adopted.”

In the light of Shell’s effective abandonment of climate engagement beyond greenwashing (I realise I am not mincing my words here yet the company’s climate reversal under its new CEO is marketed purposely to attract investors), this is imho a wrong approach to the test. It also underscores the tragedy of climate change’s multi-facetted challenges: because of the extent of the challenge, no singular approach is singlehandedly either efficient or sufficient, yet the opponents of climate action use that as a smokescreen to bedazzle judges with a labyrinth of inaction. Industry’s Merchants of Doubt approach has clearly worked here.

As for the Dutch judgment, the judge is not convinced of the nature of what the judgment really orders, and here, too, CPR rules on evidence seem to have put a spanner in the works (prof Toon van Mierlo’s Opinion not being addressed to the court etc: [53]).

[63] the judge adds obiter that in light of the de minimis extent of ClientEarth’s shareholder interest in Shell, some doubt must be cast on its ulterior rather than derivative interest in the claim. [64]

“it seems to me that where the primary purpose of bringing the claim is an ulterior motive in the form of advancing ClientEarth’s own policy agenda with the consequence that, but for that purpose, the claim would not have been brought at all, it will not have been brought in good faith. The reason for this is that it will be clear to ClientEarth that it is using an exceptional procedure in the form of a derivative action, for a purpose other than the purpose for which the legislation has made it available. If, on the evidence adduced by the applicant, that remains an open and unanswered question irrespective of what Shell might say at the substantive hearing, the court cannot be satisfied that ClientEarth is acting in good faith, a situation which will count strongly against a conclusion that it has established a prima facie case for permission.”

I.a. the judge’s approach [65] of the collateral motive of the shareholder I imagine must be appealable as a point of law.

Geert.

Judgment in Client Earth v #Shell is now here

ClientEarth v Shell Plc & Ors (Re Prima Facie Case) [2023] EWHC 1137 (Ch)https://t.co/vYTtbJgc5T #climatelitigation https://t.co/9RS3k2gNtX

— Geert Van Calster (@GAVClaw) May 17, 2023

Update 6 July 2023 my thoughts on the funding issue are here.

The Heirs of the Sultan of Sulu v Malaysia at the end of June saw both the Paris Court of Appeal declare as inadmissible (due to late introduction) their appeal against the earlier decision suspending the exequatur, in France, of the final arbitral award (issued in Paris as locus arbitri, but under Spanish law as lex arbitrii) granting them close to 15 billion USD in a saga dating back to colonial times, and the Hague courts (also upon appeal) confirm the unenforceability of the same award in The Netherlands.

The latter judgment found that

a Madrid court judgment of 19 June 2021  annulling the appointment of the sole arbitrator has to be recognised in The Netherlands on the basis of the Dutch Supreme Court’s criteria in Gazprom; of note is the court’s confirmation of the issue not being included in CJEU Marc Rich (and see also CJEU Gazprom), however it also [6.7] emphasises that even outside the scope of Brussels Ia, there is mutual trust between the courts of Member States of the EU;

the relevant agreement at issue (confirmed in 1903) did not include an agreement to arbitrate; and

the stay (in the meantime confirmed by the Paris Court of Appeal: see above) in enforcement of the award by the French courts would likely also lead to the annulment of the award.

The heirs may still consider a further appeal to the French Supreme Court and the award itself has not yet been annulled however the case is notorious in international arbitration and, it is suggested, can only have been this long running due to what is said to be inappropriate third party funding.

Geert.

Confirmation of unenforceability of the Heirs of the Sultan of Sulu v Malaysia #arbitration award in The Netherlandshttps://t.co/w3OLK9xVep pic.twitter.com/7wyOdQOJH3

— Geert Van Calster (@GAVClaw) July 4, 2023

Puigdemont i Casamajó et Comín i Oliveres / Parlement
Droit institutionnel
Le recours de MM. Carles Puigdemont i Casamajó et Antoni Comín i Oliveres et de Mme Clara Ponsatí Obiols contre les décisions du Parlement européen de lever leur immunité est rejeté

Thank you Anil Yilmaz, whose reply to a Tweet made me aware of the judgments of end of February in the claim brought by a number of NGOs against Total viz its activities in Uganda. The claim is an ex ante claim brought on the basis of the French statute which introduced the so-called devoir de vigilance or duty of care in the business and human rights sector. It argues that Total’s plan for the Ugandan activities at issue, fail the standard of the Act.

I had earlier flagged the procedural issue in the case and Cédric Helaine has review and links to the judgments here. The court (p.18) notes that the implementing decree which is supposed to detail the requirements of the law, has still not been adopted and that the law itself does not offer a blueprint, a decision tree, a list of indicators, merely indicating that the plan needs to include a ‘reasonable’ list of both pressure points and measures to address these, and that the plan moreover is to be drafted in consultation with stakeholders. In the absence of Government clarification of what this might entail, the court then points out that the reasonable or not character of the plan needs to be assessed by the courts themselves yet (p.20-21) and that a judge in an interlocutory proceeding in particular, can only be asked to discipline those plans which are non-existent, or clearly insufficient (which the judge finds is not the case here), yet cannot be expected to judge the plan’s reasonableness:

S’il entre dans les pouvoirs du juge des référés de délivrer une injonction en application des dispositions susvisées lorsque la société, soumise au régime du devoir de vigilance n’a pas établi de plan de vigilance, ou lorsque le caractère sommaire des rubriques confine à une inexistence  du plan, ou lorsqu’une illicéité manifeste est caractérisée, avec
l’évidence requise en référé, en revanche, il n‘entre pas dans les pouvoirs du juge des référés de procéder à l’appréciation du caractère raisonnable des mesures adoptées par le plan, lorsque cette appréciation nécessite un examen en profondeur des éléments de la cause relevant du pouvoir du seul juge du fond.

The judge concludes that in the case at issue, there is no such obvious shortcoming and that the request therefore is inadmissible given the role of the interlocutory proceedings.

This judgment of course says little on the role of the Act in claims on the merits of duty of care in which Acts such as these play a role (as opposed to claims merely arguing the planning stage is insufficient) however it clearly puts pressure on the French government urgently to produce its more detailed order, and it confirms the need to introduce detail either in these Acts (including in the recently adopted EU Directive) themselves or, swiftly, in executive follow-up. This avoids that judges use trias politica as a way out of having to judge the issues on their merits.

Geert.

Droit de vigilance, #bizhumanrights #mHRDD
French SC in tribunal de conflits role, assigns jurisdiction to civil court of first instance, not the commercial court.
Case may now finally continue on the merits. https://t.co/ERbD6r6Lsm

— Geert Van Calster (@GAVClaw) December 16, 2021

Meta Platforms e.a. (Conditions générales d’utilisation d’un réseau social)
Principes du droit communautaire PDON
Une autorité de la concurrence nationale peut constater, dans le cadre de l’examen d’un abus de position dominante, une violation du RGPD

Landeshauptstadt Wiesbaden
Espace de liberté, sécurité et justice
Selon l’avocate générale Medina, le recueil et le stockage obligatoires d’empreintes digitales dans les cartes d’identité est valide

In Popescu v Essers the Antwerp Court of Appeal has confirmed jurisdiction in a claim by a Romanian driver against a Belgian-incorporated freight company, and applied Belgian labour law to the their contract.

The case echoes social dumping issues, relevant earlier posts on the blog include CJEU Gruber Logistics, and Altun. Outside of Brussels Ia and Rome I, CJEU AFMB and others is of note.

I do not have access  to the first instance judgment and the Court of Appeal’s judgment is a touch cryptic on a first issue of note which is the impact of the earlier decision by the Romanian courts and the extent of res judicata: I cannot say much about that for want of the first instance judgment and /or further info in the court of appeal’s judgment, however that issue seems to have engaged factual findings in the Romanian courts.

What is clear is that on the basis of Article 21 BIa, jurisdiction in the domicile of the employer was easily established [p.6].

With respect to applicable law and Rome I, the Court of Appeal refers to the CJEU in Koelzsch [42] holding “in so far as the objective of Article 6 of the Rome Convention is to guarantee adequate protection for the employee, that provision must be understood as guaranteeing the applicability of the law of the State in which he carries out his working activities rather than that of the State in which the employer is established. It is in the former State that the employee performs his economic and social duties and, as was noted by the Advocate General in point 50 of her Opinion, it is there that the business and political environment affects employment activities. Therefore, compliance with the employment protection rules provided for by the law of that country must, so far as is possible, be guaranteed.” (emphasis added by me, GAVC). The Court of Appeal also recalls the criteria of the CJEU in C-64/12 Schlecker, notes that the contract does not have a lex voluntatis (although the contract does refer to Romanian law in a number of instances) and holds p.12 ff that Belgium, not Romania was the place of habitual employment:

on-board diagnostics and trip reports reveal that most of Mr Popescu’s routes started from the corporation’s headquarters in Belgium, most of them to and fro Belgium’s neighbouring countries, and even if they were further afield, return was always to Belgium; no routes led him to and /or fro Romania;

dispatch for the routes was organised from Belgium, with largely the Belgian corporations of the group as the contracting party for the freight concerned;

the work tools, i.e. the trucks, even if they carried a Romanian number plate, were put at the the disposal of the drivers, and serviced, in Belgium, and (off)loading largely took place in Belgium.

Other factors pointing to Romania, were held not to displace the finding of Belgium as the place of employment: this includes Mr Popescu’s Romanian nationality and domicile; and his contract being subject to Romanian national insurance and income tax: these two latter elements, the Court held, simply reflect Mr Popescu’s domicile, not his place of employment.

The Court of Appeal also held [p.17-18] that it need not apply the posted workers Directive, with reference to CJEU FNV v Vanden Bosch, and that instead of a temporary posting there is a clear place of habitual employment with all the consequences of Rome I.

The remainder of the judgment then deals with the consequences of the application of Belgian law.

A case of note!

Geert.

Judgment (Court of Appeal in fact) is here https://t.co/JpvhwEBlzI h/t @jurinfo_eric) and analysis forthcoming on my blog. https://t.co/LWyYwbZ73B

— Geert Van Calster (@GAVClaw) June 27, 2023

G. K. e.a. (Parquet européen)
Espace de liberté, sécurité et justice
Enquêtes transfrontières menées par le Parquet européen : l’avocate générale Ćapeta suggère à la Cour de dire que le contrôle juridictionnel dans l’État membre du procureur européen délégué assistant devrait se limiter aux questions de procédure