Flux européens

In Owen v Galgey & Ors [2020] EWHC 3546 (QB), Linden J yesterday dealt with the application of Rome II’s common habitual residence exception to A4(1) lex loci damni rule, and with the general escape clause of A4(3).

These cases often involve tragic accidents and injuries and the sec conflict of laws analysis below in no way of course mean any disrespect to claimant and his loved ones.

Claimant is a British citizen who is domiciled and habitually resident in England. He brings a claim for damages for personal injury sustained by him as result of an accident in France (3 April 2018), when he fell into an empty swimming pool which was undergoing works at a villa in France, a holiday home owned by the First Defendant, whose wife is the Second Defendant. They are also British citizens who are domiciled and habitually resident in England, Third Defendant is a company domiciled in France, and the public liability insurer of the First and Second Defendants. Fourth Defendant is a contractor which was carrying out renovation works on the swimming pool at the time of the accident. Fifth Defendant is the public liability insurer of the Fourth Defendant. Fourth and Fifth Defendants are both companies which are domiciled in France.

That French law applies to the claims against Fourth and Fifth Defendant is undisputed. There is however a dispute as to the applicable law in relation to his claims against the First to Third Defendants. These Defendants contend that, by operation of A4(2) Rome II, English law applies because the Claimant and the First and Second Defendants are habitually resident in England. Claimant contends that French law applies by operation of A4(3) Rome II: the ‘manifestly more closely connected’ rule.

Textual argument suggest that on the basis of the text of Recital 18 and A4(2) itself, A4(2) only applies to two party cases and does not apply in multi-party cases. Linden J at 29 notes that this would also correspond with the narrow reading required of A4(2). However he follows of course the authority of Marshall, which I approved of at the time (if only because, if multi-party claims were outside the scope of A42(), it would suffice for either claimant artificially to add a defendant to the claim, or for a defendant similarly to manoeuvre in a second defendant, for A4(2) to become inoperable). A4(2) also applies if more than one party is involved.

On A4(3), then, Marshall, too, is authority and Winrow v Hemphill another rare case that seriously engaged with the issue. In the latter case, Slade J held that the balance was in favour of not applying the escape clause, particularly in view of the period of time of habitual residence in Germany, and subsequent continuing residence in that country (inter alia for follow-up treatment). In the former, Dingemans J did reach a conclusion of applying A4(3) hence lex causae being French law on the grounds I discuss in my post on the case. Here, Linden J discusses the various factors at issue in Winrow v Hemphill and in Marhsall and reaches a conclusion of French law:

In my view it is clear that the tort/delict in the present case is manifestly more closely connected with France. France is where the centre of gravity of the situation is located and the preponderance of factors clearly points to this conclusion. This conclusion also accords with the legitimate expectations of the parties.

The reasons for that are essentially listed at (75  ff)

The tort/delict occurred in France, as I have noted. This is also where the injury or direct damage occurred. The dispute centres on a property in France and it concerns structural features of that property and how the First, Second and Fourth Defendants dealt with works on a swimming pool there. Although these defendants deny that there was fault on the part of any of them, the First and Second Defendants say that the Fourth Defendant was responsible if the pool presented a danger and the Fourth Defendant says that they were. The allegations of contributory negligence/fault also centre on the Claimant’s conduct whilst at the Villa in France.

The First and Second Defendants also had a significant and long-standing connection to France, the accident occurred on their property and the works were carried out by a French company pursuant to a contract with them which is governed by French law. Their insurer, the Third Defendant, is a French company and they are insured under a contract which is governed by French law. The contract was to insure a property in France albeit one which, I accept, applied to claims under English and French law. It is also common ground that the claim against the Fourth Defendant, and therefore against the Fifth Defendant, also a French company, is entirely governed by French law and will require the court to decide whether the Fourth Defendant or, at least by implication, the First and Second Defendants were “custodians” of the property for the purposes of French law.

Whilst it cannot be said at this stage that, by analogy with Marshall, the accident was entirely caused by the Fourth Defendant in particular, the situation in relation to the swimming pool which is said to have been the cause of the accident was firmly rooted in France and it resulted from works which were being carried out by the Fourth Defendant as a result of it being contracted to do so by the First and Second Defendants. The liability of the First and Second Defendants, if any, will be affected by how they dealt with that situation, including by evidence about their dealings with the Fourth Defendant. That situation had no significant connections with England other than the nationality and habitual place of residence of the First and Second Defendants.

The core counterarguments which were dismissed, are (78 ff)

I take the point that the Claimant and the First and Second Defendants were habitually resident in England at the relevant time, that there was a pre-existing relationship between them, and that the Claimant and his family came to be at the Villa as a result of an agreement which was made in England. But, applying an objective test (see Chitty on Contract Volume 1 at paragraph 2-171 in particular), I am not satisfied that this agreement, on the information available at this stage, was contractual in nature. Part of the difficulty in relation to this aspect of the First to Third Defendants’ argument is that there is very little information before the court as to what precisely happened. Looking at the agreed facts in the context of the statements of case and the other materials which I have been shown, however, it appears that the agreement resulted from a casual conversation between social acquaintances in the context of mutual favours having been done in the past. It was informal in nature and it appears that the Claimant offered to do the work as a favour and the First and Second Defendant invited him and his family to the Villa to return that favour.

If I had found that there was a contract, I would also likely have found that it was governed by French law. Although it was entered into in England between British parties, it related entirely to a property in France. Performance of the contract on both sides could only be effected at a particular property in France and was very strongly connected to France in that it involved work on a villa there and a family holiday there. This and the other features of the case would have led me to conclude that [A4(3) Rome I] indicated that there was a manifestly closer connection between the contract and France, although I acknowledge that there is a degree of circularity in this approach. ….

Mr Doherty understandably emphasised that, even if there was no contract with the Claimant, the relationship and the agreement which led to the Claimant and his family being in France were based and made in England. I was also initially attracted by his argument that in effect the Claimant’s complaint is about the way in which the First and Second Defendants fulfilled their side of that agreement. But that is not the claim which he makes, and, in any event, their performance of the agreement was in the form of allowing the Claimant and his family to occupy a villa in France. Nor is this a case in which, for example, the injury occurred whilst the Claimant was carrying out work on the Villa and potential tortious and contractual duties (if the relationship was contractual) therefore arose directly out of the relationship between the parties.

To my mind the tort/delict in this case is much more closely connected to the state of the swimming pool which, as I have said, was part of a property in France and resulted from the French law contract between the First and Second Defendants and the Fourth Defendant. If any of the Defendants is liable, that liability will be closely connected with this contract. This point, taken in combination with the other points to which I have referred, in my view clearly outweighs the existence of any contract with the Claimant relating to the Villa, even if I had found there to be a contractual relationship and even if it was governed by English law.

Similarly, although I have taken into account the nationality and habitual place of residence of the Claimant and the First and Second Defendants, these do not seem to me to alter the conclusion to which I have come. I have also taken into account the fact that the consequences of the accident have to a significant extent been suffered by the Claimant whilst he was in England, but in my view the other factors to which I have referred clearly outweigh this consideration.

Of particular note for future direction on Rome II, is the discussion on existing pre-contractual relations.

This is of course a fact-specific and to a certain extent, discretionary assessment. I also agree there is no limit to the kinds and amount of factors which a judge may take into account when applying the A4(3) exception.

I am minded to disagree with the conclusion reached here, however.  The judge’s assessment is one that echoes a proper law of the tort approach, starting from scratch. But that is not what A4(3) is about: it does not start from scratch; it starts from the clearly stated rule of A4(2), which requires a lot of heavy lifting to be dislodged. The arguments pro upholding the A4(2) presumption listed in 78ff in my view give the finding for sustaining its consequence and hence English law as lex causae, strong foundations indeed which I believe, respectfully of course, the judge did not show enough deference to.

Geert.

European Private International Law, 3rd ed. 2021, Heading 4.5.

Article 4(2) and (3) Rome II Regulation, applicable law for tort. https://t.co/cYGtr7m0jx

— Geert Van Calster (@GAVClaw) December 21, 2020

 

When I flagged the Dutch SC reference to the CJEU in C‑709/19 Vereniging van Effectenbezitters, asking for clarification of the Universal Music case-law on purely economic damage, I signalled the specificities of this case:  the case concerns a class action, not that of an individual shareholder; no prospectus was specifically addressed at Dutch investors, who instead feel they received incomplete and misleading information that was made public through press releases, websites and public statements by directors; finally the Dutch Supreme Court questions the CJEU on an e-Date accessibility type jurisdictional basis.

BP plc, defendant, is domiciled in the UK.

Sanchez-Bordona AG Opined last Thursday (apologies I did not make the Twitter-promised Friday review). He kicks off  his Opinion with calling into question the very premise of the Universal Music case-law: at 24

the fact that the applicant’s account is located in that Member State is a relevant consideration in any non-contractual action for damage suffered by investments as a result of defective information, even when supplemented by other factors. While noting that the Court of Justice has inclined towards that view, in my opinion it is an open question.

That is a bold proposition not borne out by either CJEU or national case-law. Arguably better formulated is the position at 28 that the interest of the location of the bank account ‘should not be overstated’.

At 32 ff the AG repeats his call (joining a list of AG’s) to abandon the Bier Handlungsort Erfolgort distinction which he also expressed in his Opinion in Volkswagen. He emphasises again that in cases like these, the procedural decision on jurisdiction requires the judge too intensive an engagement with the substance of the case, consequently (at 36) ‘the very nature of the criterion may well create uncertainty among legal practitioners and encourage procedural delaying tactics, as well as divergent interpretations in Member States and further requests to the Court of Justice for preliminary rulings.’

At 37 (and with reference to national case-law) follows a repeat of the call to ‘ruling out the place where the investment account is located’. However the AG himself then acknowledges that call is likely to fall on deaf CJEU ears (at 39):

having regard to the wording of the questions referred, I shall answer them in accordance with their own premisses, that is to say, in the light of the existing case-law of the Court of Justice

hence he continues the Opinion taking Universal Music and its descendants into account:

at 46: ‘the fact that the financial damage took place in an investment account located in the Netherlands cannot be accepted as a ‘sufficient connecting factor for the international jurisdiction’ of the courts of that State.’ – I agree.

Again with reference to his Opinion in Volkswagen, and using the initial justification of the CJEU in Bier to put forward locus damni, the AG at 49-50 reiterates that

the ‘specific circumstances’ relevant to attributing jurisdiction are those which demonstrate the proximity between the action and the jurisdiction, and the foreseeability of that jurisdiction, .. Those circumstances must include: factors that facilitate the sound administration of justice and the smooth operation of proceedings; and factors that may have helped the parties to determine where they should institute proceedings or where they might be sued as a result of their actions.

He then rejects, for reasons succinctly explained in the Opinion, as being relevant: BP’s settlement with other shareholders; the status as consumer of some of the shareholders; BP’s information about its shares.

He concludes on this point at 60 ff that there simply is not a locus damni that meets with A7(2) Brussels Ia’s conditions. He refers as he did in Volkswagen pro inspiratio to the CJEU’s similar holding viz A7(1) forum contractus in C-56/00 Besix:  that we are dealing with an obligation which ‘is not capable of being identified with a specific place or linked to a court which would be particularly suited to hear and determine the dispute relating to that obligation’.

Finally the AG deals with the question whether the nature of the action brought by VEB (the fact that it is a collective action) and the fact that it is purely an action for a declaratory judgment, should have an impact. The referring court fears that extending the CJEU rule of CDC, that the transfer of claims by each original creditor to the applicant does not affect the determination of the court having jurisdiction under Article 7(2), would make collective action ineffective.

The AG points out first of all that following ia Folien Fischer, the courts of the Member State in which either the causal event took place or the harm occurred or may occur may lawfully accept jurisdiction by virtue of A7(2) in actions in which specific damages have not (yet) been sought.

He then suggests at 79 that he sees ‘no difficulty in applying [A7(2)] to declaratory actions such as that brought by VEB, in advance of subsequent actions for damages which may be brought only by the individual injured parties, whose identity and residence are unknown at the time of the (first) action.’ Here I do not quite follow. The questions asked by VEB are not merely provisional in an A35 sense (indeed that Article is not discussed). VEB are asking the court to hold

that the courts in the Netherlands have international jurisdiction to hear the claims for compensation brought by the BP shareholders; that the rechtbank Amsterdam (District Court, Amsterdam) has territorial jurisdiction to hear those claims; that BP acted unlawfully towards its shareholders inasmuch as it made incorrect, incomplete and misleading statements about: (i) its safety and maintenance programmes prior to the oil spill on 20 April 2010; or (ii) the extent of the oil spill; or (iii) the role and responsibility of BP in regard to the oil spill; that, had it not been for the unlawful conduct on the part of BP, the purchase or sale of BP shares by the BP shareholders would have been effected at a more favourable market price, or not at all; that there is a conditio sine qua non link between BP’s unlawful conduct and the loss suffered by the BP shareholders due to the fall in the share price in the period between 16 January 2007 and 25 June 2010.

Surely these kinds of questions can only be entertained by court that has A7(2) jurisdiction which, the AG had just opined, is highly unlikely (although the referring court will have the last word on that).  That he sees ‘no difficulty in applying [A7(2)] to declaratory actions such as that brought by VEB’ either then contradicts what he just advised (unlikely) or reinforces it cynically (as in ‘no difficulty in applying it, meaning there is no such jurisdiction’) – also perhaps unlikely. Am I missing something?

Finally at 95 the AG (not further discussing Qs 3 and 4) concurs with Bobek AG in Schrems: on the issue of assignment, it is not up to the CJEU to write the law.

Most relevant.

Geert.

EU Private International Law, 3rd ed. 2021, para 2.459.

Among flurry of #CJEU documents on this Super Thursday is SÁNCHEZ-BORDONA AG's Opinion in Vereniging van Effectenbezitters: location, for jurisdictional purposes, of purely financial damage, application of the Universal Music criteriahttps://t.co/xUwiMNYZFA
I shall review 2mrw.

— Geert Van Calster (@GAVClaw) December 17, 2020

 

AG Hogan delivered yesterday his opinion in case C‑896/19 (Repubblika v Il-Prim Ministru, joined party: WY), which is about judicial independence, the procedure for the appointment of judges and the power of the Prime Minister as well as the involvement of a judicial appointments committee. Should this opinion be endorsed by the Court of Justice, and taking into account other cases, the Court is slowing but surely putting EU Law at the heart of the MS judiciary’s organisational rules.

Opinion: “(1) The second subparagraph of Article 19(1) TEU, read in the light of Article 47 of the Charter of Fundamental Rights of the European Union, is applicable when a national court is assessing the validity of a procedure for the appointment of judges such as that provided for by the Constitution of Malta.

(2) Article 19(1) TEU, interpreted in the light of Article 47 of the Charter of Fundamental Rights, does not preclude national constitutional provisions under which the executive power or one of its members, such as the Prime Minister, plays a role in the process of the appointment of members of the judiciary. While Article 19(1) TEU, interpreted in the light of Article 47 of the Charter, is not ex ante prescriptive either in terms of the particular conditions of appointment or the nature of the particular guarantees enjoyed by judges of the Member States, it does nonetheless require as a minimum that such judges enjoy guarantees of independence. What matters for the purposes of Article 19 TEU, is that judges must be free from any relationship of subordination or hierarchical control by either the executive or the legislature. Judges must enjoy financial autonomy from the executive and the legislature, so that their salaries are not impaired (otherwise than by generally applicable taxation or generally applicable and proportionate salary reduction measures) during their term of office. It is also important that they enjoy sufficient protection against removal from office, save for just cause and their disciplinary regime must include the necessary guarantees in order to prevent any risk of its being used as a system of political control of the content of judicial decisions.

(3) The procedure for the appointment of judges cannot be called into question under Article 19(1) TEU, interpreted in the light of Article 47 of the Charter of Fundamental Rights, in support of claims introduced before the date of the forthcoming judgment”.

Source: http://curia.europa.eu/juris/document/document.jsf?text=&docid=235729&pageIndex=0&doclang=EN&mode=req&dir=&occ=first&part=1&cid=19345372

The Administrative Cooperation Working Group on the Hague Convention of 23 November 2007 on the International Recovery of Child Support and Other Forms of Family Maintenance met this week (14 to 17 December 2020). An aide-mémoire summarising the outcomes of the meeting has been released by the HCCH. It is available at https://assets.hcch.net/docs/ef04cdf2-2a19-4edb-bc73-2009ef9000a4.pdf.

AG Campos Sanchez-Bordona delivered today his opinion in case C‑709/19 (Vereniging van Effectenbezitters v BP plc), which is about Article 7.2 Brussels I bis in the case of a purely financial damage.

Context: “1. An association of securities holders has brought an action for damages before the Hoge Raad der Nederlanden (Supreme Court of the Netherlands) over the fall in the value of their shares in a company established in the United Kingdom, following an oil spill at the company’s operations in the Gulf of Mexico.

2. In the context of those proceedings, the court needs to obtain an interpretation of Article 7(2) of Regulation (EU) No 1215/2012. As the claim is for purely financial damage, the court has difficulty in deciding on its jurisdiction in the light of previous decisions of the Court of Justice, particularly the judgments in Kolassa, Universal and Löber”.

Opinion: “1. Article 7(2) of Regulation (EU) No 1215/2012 […] must be interpreted as meaning that:

(a) it is not a sufficient connecting factor for attributing international jurisdiction to the courts of a Member State that a fall in the value of the shares of a company listed on stock exchanges in other Member States is recorded in investment accounts located in that Member State or in investment accounts of a bank or investment firm established in that Member State, where the damage is the result of decisions taken by investors on the basis of allegedly incorrect, incomplete and misleading information distributed globally by the listed company;

(b) the existence of a settlement between the defendant company and some shareholders in a third State which has not been offered to the applicants in the main proceedings and the fact that some applicants are consumers are not relevant specific circumstances for the purposes of attributing international jurisdiction pursuant to Article 7(2) of Regulation No 1215/2012. Nor is the fact that the relevant information was distributed worldwide by the defendant company.

2. The exercise of a collective action in accordance with national rules of procedure by an association representing the interests of the holders of the securities who suffered the damage does not alter the interpretation of Article 7(2) of Regulation No 1215/2012”.

Source: http://curia.europa.eu/juris/document/document.jsf;jsessionid=74FA8D126E0AFC56C07B928CDA7887E4?text=&docid=235726&pageIndex=0&doclang=EN&mode=req&dir=&occ=first&part=1&cid=19345184

Repubblika
DFON
Avocat général Hogan : le droit de l’Union ne fait pas obstacle à des dispositions constitutionnelles nationales en vertu desquelles le pouvoir exécutif ou l’un de ses membres, comme le Premier ministre, joue un rôle dans la procédure de nomination de membres de l’ordre judiciaire

A.B. e.a. (Nomination des juges à la Cour suprême - Recours)
Droit institutionnel
Selon l’avocat général Tanchev, la loi polonaise introduite dans le but d’exclure la possibilité d’un contrôle juridictionnel de l’appréciation, par le Conseil national de la magistrature, des candidats aux fonctions de juge à la Cour suprême viole le droit de l’Union

Generalstaatsanwaltschaft Hamburg
Espace de liberté, sécurité et justice
L’exécution d’un mandat d’arrêt européen délivré aux fins d’exécution d’une peine privative de liberté ne peut être refusée, lorsque la personne concernée a fait obstacle à sa citation en personne et n’a pas comparu en personne au procès en raison de sa fuite vers l’État membre d’exécution, au seul motif que l’État membre d’émission n’a pas assuré que le droit à un nouveau procès de cette personne sera respecté

Syndicat interprofessionnel de défense du fromage Morbier
Agriculture
Le droit de l’Union interdit la reproduction de la forme ou de l’apparence du produit protégé par une AOP dans certaines circonstances

A.M. (Étiquetage des produits cosmétiques)
Rapprochement des législations
La mention de la « fonction » d’un produit cosmétique, devant figurer sur son récipient et son emballage, doit clairement informer le consommateur sur l’usage et le mode d’utilisation de ce produit

CLCV e.a. (Dispositif d’invalidation sur moteur diesel)
Environnement et consommateurs
Un constructeur ne peut installer un dispositif d’invalidation qui améliore systématiquement, lors des procédures d’homologation, la performance du système de contrôle des émissions des véhicules afin d’obtenir leur homologation

WEG Tevesstraße
Fiscalité TVA
La livraison de chaleur par un groupement de propriétaires de logements à ses membres est soumise à la TVA

Openbaar Ministerie (Indépendance de l’autorité judiciaire d’émission)
Espace de liberté, sécurité et justice
L’existence d’éléments témoignant de défaillances systémiques ou généralisées concernant l’indépendance de la justice en Pologne ou de l’aggravation de celles-ci ne justifie pas, à elle seule, que les autorités judiciaires des autres États membres refusent d’exécuter tout mandat d’arrêt européen émis par une autorité judiciaire polonaise

Generalstaatsanwaltschaft Berlin (Extradition vers l'Ukraine)
DISC
Un citoyen de l’Union ne peut être extradé vers un État tiers qu’après consultation de l’État membre dont il a la nationalité

Centraal Israëlitisch Consistorie van België e.a.
Agriculture
Afin de promouvoir le bien-être animal dans le cadre de l’abattage rituel, les États membres peuvent, sans méconnaître les droits fondamentaux consacrés par la Charte, imposer un procédé d’étourdissement réversible et insusceptible d’entraîner la mort de l’animal

International Skating Union / Commission
Concurrence
Le Tribunal confirme que les règles de l'Union internationale de patinage (UIP) prévoyant des sanctions sévères contre les athlètes qui participent à des épreuves de patinage de vitesse non reconnues par elle sont contraires aux règles de l'Union en matière de concurrence

Conseil / K. Chrysostomides & Co. e.a.
Droit institutionnel
La Cour confirme les arrêts du Tribunal en ce qu’il a rejeté les recours en indemnité formés par plusieurs particuliers et sociétés en raison d’actes et de comportements des institutions de l’Union adoptés dans le cadre d’une assistance financière accordée à Chypre et conditionnée à la restructuration de son secteur bancaire

The Court of Justice delivered last week (10 December 2020) its judgment in case C‑80/19 (A. B., B. B. v Personal Exchange International Limited), which is about Brussels I. The judgment is currently available in all EU official languages (save Irish), albeit not in English. Here is the French version (to check whether an English translation has finally been made available, just click on the link below and change the language version):

“L’article 15, paragraphe 1, du règlement (CE) no 44/2001 […] doit être interprété en ce sens qu’une personne physique domiciliée dans un État membre qui, d’une part, a conclu avec une société établie dans un autre État membre un contrat pour jouer au poker sur Internet, contenant des conditions générales déterminées par cette dernière, et, d’autre part, n’a ni officiellement déclaré une telle activité ni offert cette activité à des tiers en tant que service payant ne perd pas la qualité de « consommateur » au sens de cette disposition, même si cette personne joue à ce jeu un grand nombre d’heures par jour, possède des connaissances étendues et perçoit des gains importants issus de ce jeu ».

Source : http://curia.europa.eu/juris/document/document.jsf;jsessionid=58831D1B50FE81EB65264CF9F4A957CD?text=&docid=235347&pageIndex=0&doclang=fr&mode=req&dir=&occ=first&part=1&cid=18043820

Ness Global Services Ltd v Perform Content Services Ltd [2020] EWHC 3394 (Comm)  engages Articles 33-34 of the Brussels Ia Regulation, its so-called forum non conveniens light regime. I reported on it before of course, most recently re Municipio de Mariana in which the judge arguably failed to engage with BIa properly (making A33-34 a carbon copy of abuse and /or forum non arguments in my view is noli sequi).

Perform and Ness are UK-registered companies with offices in London.  Perform are defendants in the UK action. Ness Global Services and its parent Ness Technologies Inc are defendants in parallel proceedings in New Jersey. Both sets of proceedings are based on the same facts and matters. These are said to constitute the basis for termination by both sides of a written agreement.

Ness argue application of A33-34 must be dismissed for there is non-exclusive choice of court in favour of England which, it argues, makes the A33-34 threshold very high. (The clause reads ‘”Governing Law and Jurisdiction. The Agreement shall be governed by and construed in accordance with the laws of England and Wales and the parties hereby irrevocably submit to the non-exclusive jurisdiction of the Courts of England and Wales as regards any claim, dispute or matter arising under or in connection with this Agreement.”)

Houseman J introduces BIa’s scheme clearly and concisely, using the excellent Adrian Briggs’ suggestion of there being a hidden hierarchy in the Regulation – which in my Handbook I have also adopted (clearly with reference to prof Briggs) as the ‘jurisdictional matrix’. Houseman J at 39 notes that non-exclusive jurisdiction is hardly discussed in the Regulation. and concludes on that issue ‘If the internal hierarchy is “hidden” then is fair to say that the concept of non-exclusive prorogated jurisdiction is enigmatic and elusive. It is The Scarlet Pimpernel of the Regulation.’ Later non-EJA is used as shorthand for non-exclusive jurisdiction agreement.

At 62 after consideration of the reflexive application of exclusive jurisdictional rules, including choice of court, the text of A33-34, and recital 24, the judge considers that the recital

focusses upon connections with the ‘first seised’ Non-Member State, rather than the ‘second seised’ Member State which is applying Article 33 or Article 34. This is conspicuous notwithstanding the fact that the jurisdictional gateway language presupposes some connection between either the defendant (domicile) or the circumstances of the case (special jurisdiction) and the ‘second seised’ forum. Further, there is no obvious room in this wording for accommodating or giving effect to a Non-EJA in favour of the courts of the latter forum, and no warrant for affording it the significance that it would receive under English private international law principles, as noted below. In contrast, the second paragraph of the recital appears to contemplate the conferral of exclusive prorogated jurisdiction (albeit reflexively) in favour of the ‘first seised’ Non-Member State, as noted above.

At 80, Houseman J emphasises that in his view the internal hierarchy of the Regulation (the matrix) has no direct role to play in interpreting or applying the gateway language in A33-34. Those articles are themselves part of such hierarchy and are themselves a derogation from the basic rule of domiciliary jurisdiction. He then refers in some support to UCP v Nectrus (reference could also have been made to Citicorp) to hold at 95 that

where Article 25 operates to confer prorogated jurisdiction upon the courts of the ‘second seised’ Member State, whether exclusive or non-exclusive, Articles 33 and 34 are not applicable. In such a case it cannot be said that the court’s jurisdiction is “based upon” Article 4.

A suggestion at 96 that in such case A33-34 can apply reflexively is justifiably rejected.

At 109 application of A33-34 had they been engaged is declined obiter as being not in the interest of proper administration of justice. At 107 mere reference, neither approving nor disapproving was made ia to Municipio de Mariana which effectively places the Articles on a forum non footing.  At 112 it is held obiter

Without engaging in a full granular balancing exercise, given that this is a hypothetical inquiry in the present case, I am not persuaded that it is or would have been necessary for the proper administration of justice to stay these proceedings in favour of the NJ Proceedings. The parties bargained for or at any rate accepted the risk of jurisdictional fragmentation and multiplicity of proceedings by agreeing clause 20(f). That risk has manifested, largely through the tactical choice made by Perform to commence proceedings pre-emptively in New Jersey. The continuation of these proceedings, notwithstanding the existence of the NJ Proceedings, is a foreseeable consequence of the parties’ free bargain and a risk that Perform courted by suing first elsewhere.

An interesting addition to the scant A33-34 case-law, in an area this time of purely commercial litigation.

Geert.

European Private International Law, 3rd ed. 2021, 2.539 ff.

Application (dismissed) for a stay on the basis of Articles 33-34 Brussels Ia, 'forum non conveniens light'. https://t.co/gwl3B5y3hl

— Geert Van Calster (@GAVClaw) December 11, 2020

Junqueras i Vies / Parlement
Droit institutionnel
Le Tribunal déclare irrecevable le recours de M. Junqueras i Vies contre le constat, par le Parlement européen, de la vacance de son siège