Flux européens

Expect a series of blog postings in the next few weeks on developments which occurred a few weeks or even months back. I have been squirreling away a series of judgments and other developments, with a view to exam season. Some of them I did use in my exam papers – some of them I did not.

Cooper v. Tokyo Electric Power [plaintiffs in the case are a group of service members in the U.S. Navy who were deployed to Operation Tomodachi, a relief effort in the immediate aftermath of the massive earthquake and tsunami; they allege they were exposed to radiation during the deployment] by the US Court of Appeals, ninth circuit, is a direct (and rare in its directness) example of how jurisdictional rules are used to help co-ordinate a country’s diplomatic efforts. In this particular case, the Court gives direct support to the State Department’s view that in order for others to be encouraged to accede to the Convention on Supplementary Compensation for Nuclear Damage (“CSC”), its main jurisdictional rule (granting exclusive jurisdiction to the country of the locus delicti commissi) must not be achievable via an application of comity in the US courts. For further background and overview see  Elina Teplinsky, and Meghan Claire Hammond here.

That plaintiffs are US citisens plays a major role in the court ruling out forum non conveniens.

In some of the corporate social responsibility /alien tort statute cases that I have reported on in the blog (particularly, Rio Tinto), foreign policy openly plays a role, too, and in Kiobel itself, in the lower courts, the impact of jurisdiction on US foreign policy was debated, too. It is always refreshing to see courts highlight the issue openly. For in many jurisdictions, such obvious impacts are brushed under the carpet.

Geert.

 

 

 

The European Court of Justice held last week in C‑368/16, Assens Havn. It confirmed privity of choice of court in the event of subrogation of the victim in the rights of the insured. The victim is not bound by choice of court between insurer and tortfeasor:

At 41: ‘The extension to victims of the constraints of agreements on jurisdiction based on the combined provisions of Articles 13 and 14 of Regulation No 44/2001 could compromise the objective pursued by Chapter II, Section 3, thereof, namely to protect the economically and legally weaker party.

That the CJEU confirms privity of contractual choice of court is no surprise: see most recently Leventis. In the case of insurance contracts the issue is slightly less obvious for unlike in the case of consumers and employees, the legal presumption of weakness often does not represent commercial reality.

Whether the subrogated party can make use of the choice of court clause in the underlying contract was not sub judice in the judgment.

Geert.

(Handbook of) EU private international law, 2nd ed. 2016, Chapter 2.

 

BASF Grenzach / ECHA
Recherche, informations, éducation, statistiques
Le Président du Tribunal de l’UE rejette la demande en référé de BASF Grenzach au sujet du triclosan, un conservateur pour produits cosmétiques

Bolagsupplysningen et Ilsjan
Espace de liberté, sécurité et justice
L’avocat général Bobek estime que l’entreprise qui prétend que ses droits de la personnalité ont été violés par la publication d’informations sur Internet peut demander en justice réparation de l’intégralité du préjudice dans l’État membre dans lequel est situé le centre de ses intérêts

Commission / Espagne
Liberté d'établissement
Pour avoir tardé à libéraliser le secteur des services portuaires de manutention de marchandises, l’Espagne est condamnée à payer une somme forfaitaire de trois millions d’euros

The Private International Law Group at the School of Law of Carlos III University of Madrid organises an international congress on matrimonial property regimes and property consequences of registered partnerships.

The event will take place on 16 and 17 November 2017.

Young researchers are invited to send their papers in Spanish or English by 20 September 2017 to mjcastel@der-pr.uc3m.es.

Further information available here.

The Electronic CISG, edited by / a cura di Ingeborg Schwenzer, Lisa Spagnolo, Eleven International Publishing, 2017, ISBN 9789462367517, pp. 136, EUR 60.

In this book the authors engage with the interface between the rise of electronic communications and the Convention on Contracts for the International Sale of Goods (CISG). The contributors consider the opportunities, challenges and problems in adapting the CISG to deal with issues arising from the information age. In revisiting the CISG in light of technological advances that have changed the world since it was drafted, this book collects chapters dealing with the intersection between the CISG, the UNCITRAL Model Law on Electronic Commerce (MLEC), and the United Nations Convention on the Use of Electronic Communications in International Contracts 2005 (e-CC). A detailed comparison of their respective provisions is provided in one, while the other gives an insight into the policies behind their development, including critical commentary and recommendations. In addition, it covers the inclusion of electronic standard terms pursuant to the CISG, the CISG’s effect on the domestic law of electronic transactions in the Middle East, on how communications by social media may become binding representations under the CISG, and whether it is time to update the CISG Advisory Council Opinion No.1.

France / Commission
Aide d'État
Le Tribunal confirme que l’apport en capital et les mesures de privatisation adoptés par la France en faveur de la SNCM sont des aides d’État illégales et incompatibles avec le marché intérieur

Air Berlin
Transport
Les frais d’annulation demandés par les compagnies aériennes peuvent être contrôlés au regard de leur caractère abusif

Toshiba / Commission
Concurrence
La Cour confirme l’amende de 61,44 millions d’euros infligée à Toshiba (dont 4,65 millions d’euros à titre solidaire avec Mitsubishi) pour sa participation à l’entente sur le marché des appareillages de commutation à isolation gazeuse

Fries
Transport
La limite d’âge de 65 ans prévue par le droit de l’Union pour les pilotes dans le transport aérien commercial de passagers, de fret ou de courrier est valide

The Belgian Council of State (the highest administrative court) has annulled the Flemish waste agency’s export permit in the so-called ‘Slufter’ case, involving large quantities of toxic dredging spoil (for the aficionados: classified as EURAL 17 05 05*; ia with heavy doses of tributyltin – TBT) dredged from the port of Antwerp. The case made by applicants was that the waste would be disposed of in the port of Rotterdam’s ‘slufter’ by way of mere dumping, as opposed to processing ‘at home’ in the Flemish region.

At issue was Article 11 of the Waste shipments Regulation 1013/2006, which allows Member States of export to object to planned shipments of waste destined for disposal. Applicants’ case was that the Flemish waste agency – OVAM should have disallowed the shipment on the basis of the proximity and the self-sufficiency principles. OVAM however pointed out that even if in optimal circumstances, processing in Flanders could lead to higher rates of recovery of the waste, much of it would still simply have to be landfilled. Importantly, it preferred disposal in the Slufter on the basis that the logistics chain was much shorter: load up, transport, dump. As opposed to load up, transport to processing facility for partial recovery (involving three separate processes); load-up of the solid waste left; transport and dump.

The Council of State ruled at the end of May that this decision by OVAM, in particular the reliance of the extent of the logistics chain, lacks proper assessment of the Best Available Technologies for dredging spoil, hence leading to insufficient assessment of the proximity and self-sufficiency principles. The ruling is relevant also with a view to the remainder of the spoil that will continue to be dredged.

For easy of reference (for those wishing to locate copy of the ruling): case numbers are 238220 -238224 included).

Geert.

Uber France
Rapprochement des législations ETAB SERV MARI
Selon l’avocat général Szpunar, les États membres peuvent interdire et réprimer pénalement l’exercice illégal de l’activité de transport dans le cadre du service UberPop sans notifier au préalable le projet de loi à la Commission

Jean-Sylvestre Bergé, Genevieve Helleringer, Operating Law in a Global Context – Comparing, Combining and Prioritising, Edward Elgar, 2017, pp. 256, ISBN 9781785367328, GBP 80

Lawyers have to adapt their reasoning to the increasingly global nature of the situations they deal with. Often, rules formulated in a national, international or European environment must all be jointly applied to a given case. This book seeks to make explicit the analysis the lawyer engages in every time he or she is confronted by the operation of several laws in different contexts. This reasoning is organised according to a basic three-step approach, consisting of the comparison (Part 1), combination (Part 2) and, finally, ordering or ‘prioritization’ (Part 3) of the methods and solutions of national, international and European law to be used to solve the case. The book conveys in detail how the law is operated through a wide range of concrete examples cutting across domains including criminal law, contract law, fundamental rights, internal market, international trade and procedure. This book focuses on the needs of a global lawyer who must reach conclusions in a pluralistic context. Illustrations from the domestic case law of the UK, Germany, Belgium, Italy, Spain, France and the US are used to demonstrate how lawyers can combine different contexts to improve their legal reasoning. Operating Law in a Global Context will appeal to lawyers in these jurisdictions and beyond, as well as to students training to practice in a global environment.

A website has recently been launched in the framework of the EU-funded Jean Monnet Module on European Civil Procedure in a Comparative and Transnational Perspective taught by Professor Albert Henke at the University of Milan. Its purpose is “to keep academics, professionals, students and all those involved in cross-border litigation in Europe updated about current trends and recent developments in legislation, case law and literature in this area, as well as to create an open educational resource”. The website is called European Civil Procedure, and can be found here. 

È da qualche tempo accessibile on-line un sito web realizzato nell’ambito del modulo Jean Monnet su European Civil Procedure in a Comparative and Transnational Perspective di cui è titolare, all’Università Statale di Milano, il prof. Albert Henke. Il sito si rivolge a quanti si occupano di diritto processuale civile internazionale da studiosi, professionisti e studenti, e si propone di fornire aggiornamenti sugli sviluppi normativi, giurisprudenziali e di dottrina in questa materia, oltre che fungere da risorsa formativa aperta. Il sito si chiama European Civil Procedure e si trova a questo indirizzo.

Thank you to both Patrick Wauthelet and Arie van Hoe for forwarding a copy of the judgment of the Brussels commercial court in Parfip. Please pop me an e-mail should you like a copy. The judgment is textbook application of CJEU precedent, including of course Eurofood and Interedil. Fully respecting the presumption of individual COMI in the case of a group of companies, the judgment refers to ia German and French precedent in rebuking the presumption. Not only were the companies effectively run from Brussels, notwithstanding non-Belgian seat for some of them; to third parties it was also clear that this was the case.

The judgment also confirms a narrow interpretation of the exception for ‘credit institutions’.

Geert.

(Handbook of) EU private international law, 2nd ed. 2016, Chapter 5, Heading 5.6.1.2.Heading 5.6.1.2.4.

Aarhus, Access to Environmental Information Directive. Review of Henney [2017] EWCA Civ 844 .

 

UK Human Rights Blog

Department for Business, Energy and Industry Strategy v. Information Commissioner and Henney [2017] EWCA Civ 844 , 29 June 2017 – read judgment

As many will know, there are two different systems of freedom of information, the first and better known, the Freedom for Information Act 2000, and the second, the Environmental Information Regulations 2009. From the perspective of the inquirer (Mr Henney, here), the EIRs are the more favourable, and it was the differences between the systems which gave rise to this long-running dispute to do with energy Smart Meters.

The appeal went in favour of Mr Henney, and the Information Commissioner who had ruled in his favour. But the ultimate case is not resolved, as I shall explain.

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Yesterday in Case C-436/16 Leventis the Court of Justice summarily confirmed the principle of privity of choice of court under the Brussels I Recast. I have looked at this issue before e.g. when I discussed Refcomp and Profit Sim. The tos and fros between the various parties in the case meant they were acquainted with each other in the courtroom and in arbitration panels. It also meant that actions, settlements etc. between one of them and a third party necessarily impacted commercially on the other.

However the Court of Justice essentially held that such a close, voluntary or not, relationship between the two parties does not mean that a jurisdiction clause in a contract between two companies can be relied upon by the representatives of one of them to dispute the jurisdiction of a court over an action for damages which aims to render them jointly and severally liable for supposedly tortious acts carried out in the performance of their duties. The Court simply noted that the referring national court had given no indication of choice of court made between the parties as to the latter issue, employing the classic (now) Article 25 set of criteria.

Of note is that unlike other cases such as Goldman Sachs v Novo Banco, there did not seem to be any kind of theory in relevant national law which would have led to imputability (or potential to call upon) choice of court to a third party under the given circumstances.

Geert.

(Handbook of) European private international law, 2nd ed. 2016, Chapter 2, Heading 2.2.9.7.

End of exam season (sadly not yet of marking marathon). In the next few weeks I shall be posting on judgments issued a little or longer while ago, which I was pondering to use in exams. (I did for some of them).

In [2017] EWHC 1216 (Pat) Chugai Pharmaceutical v UCB the issue at stake was to what degree a suit seeking to establish absence of liability under a patent license, in reality provokes argument on the validity of the patent. Carr J has excellent overview of review of precedent, much of which has passed in one way or another on this blog. Please do refer to judgment for proper reading.

Claimant (“Chugai”) seeks a declaration against the Defendants (collectively “UCB”) that it is not obliged to continue to pay royalties under a patent licence (“the Licence”) granted by the First Defendant (“UCB Pharma”).  UCB Pharma is a Belgian company with an English branch which entered into the Licence with Chugai in respect of a portfolio of patents. Chugai claims that its products, which are, in part, manufactured and sold in the USA, fall outside the scope of the claims of the Patent concerned. Accordingly, Chugai seeks a declaration that it owes no royalties for the manufacture and sale of these drugs manufactured after a certain date.

UCB alleges that, although framed as a claim for a declaration relating to a contract, a part of these proceedings, in substance, concerns not only the scope but also the validity of the Patent. UCB submits that the validity of a US patent is non-justiciable, since the English court has no power to determine the validity of a foreign patent. Accordingly, it submits that those parts of Chugai’s pleading which are said to raise issues of invalidity fall outside the subject matter jurisdiction of the English court.

European private international law as readers will know lays greats emphasis on exclusive jurisdiction in the case of validity of patents. The CJEU’s holding in C-4/03 Gat v Luk that nullity actions against a national part of a certain European patent can only be conducted in the jurisdiction for which that patent was registered, regardless of whether the nullity argument is raised in the suit or by way of defence, is now included verbatim in Article 24(4) Brussels I Recast. The EU’s take is rooted in the idea that the grant of a national patent is “an exercise of national sovereignty” (Jenard Report on the Brussels Convention (OJ 1979 C59, pp 1, 36)). The rule therefore engages the Act of State doctrine, and suggests that comity requires the courts of States other than the State of issue, to keep their hands off the case.

Particularly in cases where defendant is accused of having infringed a patent, this rule gives it a great possibility to stall proceedings. Where the action is ‘passive’, with plaintiff aiming to establish no infringement, the argument that the suit really involves validity of patent is less easily made.

The possibility of ‘torpedo’ abuse, coupled with less deference to the jurisdictional consequences of the Act of State doctrine [particularly its contested extension to intellectual property rights], means the English courts in particular are becoming less impressed with the exclusivity. Where the EU Regulation applies, they do not have much choice. Carr J refers to [2016] EWHC 1722 (Pat) Anan where claimant sought to carve out issues of validity by seeking a declaration that the defendant’s acts infringed a German patent “if the German designation is invalid (which is to be determined by the German courts)“.  EU law meant this attempt could not be honoured. Carr J however suggests that EU rules have no direct application in the present case because the Patent at stake is a United States patent. That is not quite spot on, for under the amended lis alibi pendens rule of the Brussels I Recast, reflexive effect is suggested for the Regulation’s exclusive jurisdictional rules, leaving a Member State court in a position (not: under an obligation) to give way to pending litigation in third countries. (In the case at hand there was no such litigation pending elsewhere).

Allow me to lean on 20 Essex Street’s conclusion in their review of the case: Carr J held that the case before him was not a direct challenge to validity. He accepted Chugai’s submissions that its claim was contractual. Disputed parts of the patent were incidental to the essential nature of its claim, which was a claim for determination of its royalty obligations. In his view, this claim fell within the exclusive jurisdiction clause, in favour of the English courts, which parties had agreed.

Essential reading for IP litigators.

Geert.

 

Congregación de Escuelas Pías Provincia Betania
Aide d'État
Les exonérations fiscales dont jouit l’Église catholique en Espagne peuvent constituer des aides d’État prohibées si et dans la mesure où elles sont octroyées pour des activités économiques