Flux européens

Bauer
DFON
Les héritiers d’un travailleur décédé peuvent réclamer à l’ancien employeur de ce dernier une indemnité financière pour le congé annuel payé non pris par ce travailleur

My review of Wahl AG’s Opinion gives readers necessary detail on C-595/17 Apple v eBizcuss. In 2012 eBizcuss started suing Apple for alleged anti-competitive behaviour, arguing Apple systematically favours its own, vertically integrated distribution network. Can choice of court in their original contract cover the action (meaning the French courts would not have jurisdiction).

The Court says it can, both for Article 101 TFEU (cartels) and for 102 TFEU actions (abuse of dominant position), but particularly for the latter. In both cases the final say rests with the national courts who are best placed to appreciate the choice of court provisions in their entire context.

For Article 101 TFEU actions, the window is a narrow one (at 28: ‘the anti‑competitive conduct covered by Article 101 TFEU, namely an unlawful cartel, is in principle not directly linked to the contractual relationship between a member of that cartel and a third party which is affected by the cartel’). For Article 102 TFEU, as noted by other, it is wider (‘the anti‑competitive conduct covered by Article 102 TFEU, namely the abuse of a dominant position, can materialise in contractual relations that an undertaking in a dominant position establishes and by means of contractual terms’). The overall context of appreciation is that of predictability: at 29 (referring to CDC): ‘in the context of an action based on Article 102 TFEU, taking account of a jurisdiction clause that refers to a contract and ‘the corresponding relationship’ cannot be regarded as surprising one of the parties.’

Geert.

 

 

Crédit agricole et Crédit agricole Corporate and Investment Bank / Commission
Concurrence
Le président du Tribunal rejette la demande du Crédit agricole et de JPMorgan Chase visant à empêcher la publication de la décision de la Commission concernant l’entente EURIBOR

Devin / EUIPO - Haskovo (DEVIN)
Propriété intellectuelle et industrielle
DEVIN, nom d’une ville bulgare, peut être enregistré comme marque de l’Union pour de l’eau minérale

Funke Medien NRW
Liberté d'établissement
Selon l’avocat général Szpunar, un simple rapport militaire ne peut pas bénéficier de la protection du droit d’auteur

Sciotto
SOPO
Les travailleurs du secteur d’activité des fondations lyriques et symphoniques ne peuvent pas être exclus de la protection contre l’abus des contrats de travail à durée déterminée

Commission / Pologne
La Pologne doit suspendre immédiatement l’application des dispositions nationales relatives à l’abaissement de l’âge de départ à la retraite des juges de la Cour suprême 

[2018] EWCA Civ 2167 Sophocleous v Foreign Secretary et al is a good reminder that conflicts rules past have a tendency not to be so easily forgotten. And in the case of the English law, one or two of them may well be revived post-Brexit (with the usual caveats). Judgment in first instance was [2018] EWHC 19 (QB) which is reviewed here.

Longmore J: ‘The common law private international rule used by the courts to determine liability in an English court in respect of foreign torts (usually referred to as the double actionability rule) was prospectively abolished by the Private International Law (Miscellaneous Provisions) Act 1995 (“the 1995 Act”) for all torts except defamation. But it casts a long shadow because section 14(1) of the 1995 Act expressly provides that its provisions do not apply to “acts or omissions giving rise to a claim which occur before the commencement” of the relevant Part of the Act. The 1995 Act has itself been largely superseded by the provisions of the Rome II Convention (sic) but that likewise only applies to events occurring after its entry into force.

Claimants seek damages for personal injuries sustained in Cyprus, as a result of alleged assaults perpetrated in Cyprus by members of the UK armed forces, seconded British police officers and servants or agents of the then Colonial Administration. The appeal relates to alleged torts committed during the Cyprus Emergency sixty years ago between 1956 and 1958. Accordingly the old common law rule of double actionability applies. In the last edition of Dicey and Morris, Conflict of Laws published before the 1995 Act (12th edition (1993)) the double actionability rule was stated as follows in rule 203:

“(1) As a general rule, an act done in a foreign country is a tort and actionable as such in England, only if it is both

a) actionable as a tort according to English law, or in other words is an act which, if done in England, would be a tort; and

b) actionable according to the law of the foreign country where it was done.

(2) But a particular issue between the parties may be governed by the law of the country which, with respect to that issue, has the most significant relationship with the occurrence and the parties.”

The last element is known as the “flexible exception” – of note is that the exception can apply to the whole of the tort of only part of the legal issues it provokes: depecage, therefore, is possible.

In fact whether Cypriot law is lex causae is first of all relevant for determining whether the claim has exceeded the statute of limitation: again in the words of Longmore J: ‘the Foreign Limitation Periods Act 1984 (“1984 Act”) governs limitation in claims where the law of any other country is to be taken into account. Section 1 provides that where foreign law falls to be taken into account in English proceedings that includes the foreign law of limitation, unless the law of England and Wales also falls to be taken into account, in which event the limitation laws of both countries apply, the effective limitation period being the shorter of the two. However, section 2 provides an exception: where the outcome under section 1 would conflict with public policy, section 1 is disapplied to the extent that its application would so conflict. By section 2(2) the application of section 1 conflicts with public policy “to the extent that its application would cause undue hardship to a person who is, or might be made, a party to the action or proceedings …”. It is therefore necessary to determine whether foreign law falls to be taken into account; this has to be determined in accordance with rules of private international law.’

To settle the issue the locus delicti commissi needs to be determined (the double actionability rule is only relevant where the tort is actionable according to the law of the foreign country where it was done). This is clearly Cyprus: at 21: ‘..there is only one tort. If that tort was committed by the primary actor in Cyprus, the fact that a person jointly liable for the commission of the tort was elsewhere when he gave the relevant assistance makes no difference to the fact that the tort was committed in Cyprus.’

On whether the flexible exception for determining lex causae as a whole applies (reminder: here relevant only for the issue of limitation), Longmore J disagrees with Kerr J, the judge in the first instance case at the High Court. The flexible exception remains an exception and must not become the rule. At 56 (after lengthy reflection of various arguments brought before him): ‘In the case at issue there are no “clear and satisfying grounds” required by Lord Wilberforce at page 391H of Boys v Chaplin for departing from the general rule of double actionability. There is a danger that if the exception is invoked too often it will become the general rule to give primacy to English law rather than law of the place where the tort was committed. That would not be right.’

And at 63, he agrees with Kerr J that the flexible exception does not apply singularly to the issue of limitation.

Conclusion: both the law of Cyprus and the law of England and Wales apply for the purpose of determining limitation. The remainder of the issues are to be held later.

Fun with conflicts – albeit evidently on not a very happy topic.

Geert.

 

 

Bastei Lübbe
Liberté d'établissement
Le détenteur d’une connexion à Internet, par laquelle des atteintes aux droits d’auteur ont été commises au moyen d’un partage de fichiers, ne peut pas s’exonérer de sa responsabilité en désignant simplement un membre de sa famille qui avait la possibilité d’accéder à cette connexion

« e-Curia » deviendra le mode exclusif d’échange des documents judiciaires entre les représentants des parties et le Tribunal à compter du 1er décembre 2018

Arib e.a.
Espace de liberté, sécurité et justice
L’avocat général Szpunar propose à la Cour de juger que la directive retour doit être appliquée à un ressortissant d’un pays tiers lorsque des contrôles aux frontières intérieures ont été rétablis

Désignation du Premier avocat général de la Cour de justice

Élection des présidents des chambres à trois juges de la Cour de justice

Warby J in  [2018] EWHC 2599 (QB) Lloyd v Google (a class action suit with third party financing) considers, and rejects, jurisdiction against Google Inc (domiciled in the US) following careful consideration (and distinction) of the Vidal Hall (‘Safari users) precedent.

Of note is that the jurisdictional gateway used is the one in tort, which requires among others an indication of damage. In Vidal Hall, Warby J emphasises, that damage consisted of specific material loss or emotional harm which claimants had detailed in confidential court findings (all related to Google’s former Safari turnaround, which enabled Google to set the DoubleClick Ad cookie on a device, without the user’s knowledge or consent, immediately, whenever the user visited a website that contained DoubleClick Ad content.

In essence, Warby J suggests that both EU law (reference is made to CJEU precedent under Directive 90/314) and national law tends to suggest that “damage” has been extended in various contexts to cover “non-material damage” but only on the proviso that “genuine quantifiable damage has occurred”.

Wrapping up, at 74: “Not everything that happens to a person without their prior consent causes significant or any distress. Not all such events are even objectionable, or unwelcome. Some people enjoy a surprise party. Not everybody objects to every non-consensual disclosure or use of private information about them. Lasting relationships can be formed on the basis of contact first made via a phone number disclosed by a mutual friend, without asking first. Some are quite happy to have their personal information collected online, and to receive advertising or marketing or other information as a result. Others are indifferent. Neither category suffers from “loss of control” in the same way as someone who objects to such use of their information, and neither in my judgment suffers any, or any material, diminution in the value of their right to control the use of their information. Both classes would have consented if asked. In short, the question of whether or not damage has been sustained by an individual as a result of the non-consensual use of personal data about them must depend on the facts of the case. The bare facts pleaded in this case, which are in no way individualised, do not in my judgment assert any case of harm to the value of any claimant’s right of autonomy that amounts to “damage”…”

The judgment does not mean that misuse of personal data cannot be disciplined under data protection laws (typically: by the data protection authorities) or other relevant national courses of action. But where it entails a non-EU domiciled party, and the jurisdictional gateway of ‘tort’ is to be followed, ‘damage’ has to be shown.

Geert.

 

Désignation du Premier avocat général de la Cour de justice

Élection des présidents des chambres à cinq juges de la Cour de justice

Mme Rosario Silva de Lapuerta est élue Vice-Présidente de la Cour de justice de l’Union européenne

M. Koen Lenaerts est réélu Président de la Cour de justice de l’Union européenne

Renouvellement partiel et entrée en fonctions de six nouveaux Membres de la Cour de justice

Popplewell J held in [2018] EWHC 822 (Comm) Reliance v India in April. This post therefore is not a claim to speedy reporting (Allen & Overy have excellent review here). Rather, a quick note on the various implications of the holding in wider context.

The Act of State doctrine (in its narrow sense) essentially holds that courts should not question the validity of acts taken by a foreign government within that government’s territory.

Claimant (at 110) ‘submitted that even if non-justiciable in an English court, (one of the relevant claims, GAVC)…is arbitrable; the basis for the doctrine of foreign act of state, to the extent that it applies, is that one sovereign state should not sit in judgment on the acts of another; unlike a court, an arbitral tribunal is not an organ of a sovereign state; therefore its determination of the validity of the conduct of a sovereign party would not entail one sovereign calling into question the conduct of another; because the rationale for the foreign act of state doctrine does not apply to arbitration, what would in court be a non-justiciable issue can nevertheless be adjudicated upon by arbitrators.’

Popplewell J disagreed in what I understand to be a first formal finding on the subject: at 111 and in discussing relevant authority:

‘whilst some aspects of the foreign act of state doctrine have as their basis the exercise of “judicial self-restraint” (leading to some suggesting it is an expression of comity, GAVC), those are not the aspects of the doctrine which are relevant to the current issue… the principle that the validity and effectiveness of legislative and executive acts of a sovereign state in relation to property within its jurisdiction is not justiciable..is a hard-edged principle of English private international law, and (the majority of authority suggests, GAVC) that its rationale derives from the very concept of sovereignty which recognises the power and right of a state to determine the property rights of those whose property is situate within its territory.’

At 113: ‘there is no good reason why the principle should be any less applicable in arbitration than in litigation before an English court. It does not depend upon the tribunal itself being an organ of a sovereign state or exercising sovereign functions: it depends upon a general principle of English private international law which recognises the sovereignty of nations within recognised spheres, a principle to which arbitration tribunals, no less than courts, are required to give effect when applying English private international law principles.’

The case is an excellent illustration of the now very diverse and not always integrated international dispute resolution landscape. A case like Reliance could have conceivably ended up in BIT arbitration – which as readers will know has its own extensive challenges with domestic regulatory autonomy and the space for investment tribunals to challenge the legality and at the least the proportionate impact of States exercising sovereign regulatory functions.

This leaves two further dispute settlement channels: the use of the courts in ordinary and the use of ‘standard’ commercial arbitration (outside the BIT context), which is what was employed here. As the judgment shows, the former (courts in ordinary) have kept some control over the latter.

Lucia Raimanova and Matej Kosalko signal that classic choice of law rules combined with contractual party autonomy empowers parties to steer the litigation away from issues that a party might wish to avoid: particularly, by opting for the most interesting lex contractus (and, I would add, potentially varying same en parcours de route, to respond to changes in case-law or statutory law), and by having the State concerned sign away its right to invoke the Act of State doctrine (much like the similar contractual surrender of sovereign immunity).

International litigation is seldom confined to singular lines of analysis.

Geert.