Flux européens

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DHV v Motor Insurers’ Bureau (Rev1) [2025] EWHC 2002 (KB) is an interesting case to discuss statutory construction of EU law, specifically (and this is mostly how it ended up on the blog) with respect to Rome II’s ‘evidence and procedure’ carve-out and the impact of its recital 33 on same.

Those interested in the use of experts in proceedings generally, may want to read the first 80 or so paras of the judgment as well, for the account by Dias J of the various experts and their credibility is most informative, as is [45]

Two accident reconstruction experts gave live evidence: …..The factual conclusions the court reaches must be based on the totality of evidence, combining expert and all other relevant evidence. The court is not bound by the conclusions of any expert if it offends logic and common sense. We do not have trial by experts. This principle applies with equal force to the other pairs of experts, on Spanish law, actuarial evidence and medico-legal matters. I will not repeat that important warning and qualification. (emphasis added)

Now, to the conflict of laws issues at hand:

The judgment on this issue kicks off with general observations on determining applicable law, and the precise implications of ‘foreign law as fact’ with [82] reference ia to Lambert v MIB as well [83 ff] as how exactly that foreign law needs to be applied: entirely as it has been done by the relevant foreign courts (possibly all the way up to their supreme court), or, if their is evidence (provided by the experts) that these foreign courts have not actually properly applied their own laws, by the English court’s ‘proper’ reading of those laws.

[85] ff then discuss Rome II’s ‘evidence and procedure’ carve-out, which I review in the handbook with reference to all authorities reviewed in current case. Pro memoria, relevant statutory provisions are

Article 1(3)

This Regulation shall not apply to evidence and procedure,
without prejudice to Articles 21 and 22.

Note ! this is a proper and entire carve-out altogether from the scope of the Regulation, different from Article 1(2) which excludes certain issues which as a result of Article 1(1) are within its scope, but are then excepted.

(Articles 21 and 22 are of no relevance to the case at issue; see on those Articles eg Quilombola, X v Y (parental responsibility) or X v Y ( monies viz real estate transaction).

Article 15 ‘Scope of the law applicable’

Article 15
Scope of the law applicable
The law applicable to non-contractual obligations under this Regulation shall govern in particular:
(a) the basis and extent of liability, including the determination of persons who may be held liable for acts performed by them;
(b) the grounds for exemption from liability, any limitation of liability and any division of liability c) the existence, the nature and the assessment of damage or the remedy claimed;
(d) within the limits of powers conferred on the court by its procedural law, the measures which a court may take to prevent or terminate injury or damage or to ensure the provision of compensation;
(e) the question whether a right to claim damages or a remedy may be transferred, including by inheritance;
(f) persons entitled to compensation for damage sustained personally;
(g) liability for the acts of another person;
(h) the manner in which an obligation may be extinguished and rules of prescription and limitation, including rules relating to the commencement, interruption and suspension of a period of prescription or limitation.

Of further relevance is recital 33

According to the current national rules on compensation awarded to victims of road traffic accidents, when quantifying damages for personal injury in cases in which the accident takes place in a State other than that of the habitual residence of the victim, the court seised should take into account all the relevant actual circumstances of the specific victim, including in particular the actual losses and costs of after-care and medical attention.

Wall v Mutuelle of course is the core reference employed although as I have said before, it is wrong to suggest such as the judge does here [87] that “While [the evidence and procedure carve-out] is a derogation from article 15, it must be narrowly construed”.

A first bone of contention is whether Rome II applies at all to the case. It’s probably me who does not quite see how that argument is made. The question in the end is not all that relevant given the answer to the second issue: whether recital 33 has a substantive impact on the case. The judge held it does not.

I have not recently looked at Recital 33, nor done a detailed study of its travaux. That word in fact gives the recital too much credit: a recital can be part of the travaux of a statutory provision. It does not have its own travaux, given that recitals plainly are not EU statutory law. In the case of current recital, it was a plaster to sooth the European Parliament’s failure to introduce what would have been in effect a harmonisation of substantive law on full compensation (the restitutio in integrum principle; the judge here refers ia to prof Dickinson’s discussion of the recital).

Dias J also discusses Halsbury on EU statutory law as a general background to the application of EU law. He is wrong in my opinion to [114] suggest that “the current national rules on compensation” as used in recital 33, are a reference to the applicable lex causae (which he incompletely refers to as the ‘lex loci’: ‘damni’ should be added to that). ‘The current national rules’ refers to ius commune as eg the French version shows: ‘En vertu des règles nationales existantes en matière d’indemnisation des victimes d’accidents de la circulation routière.’

Conclusion [127]: recital 33 is not a legal rule. At the most it may be of relevance in an A4(3) ‘more closely connected’ scenario – which is not the case here.

A case of interest for Rome II. Another example, too, of where continental courts in all likelihood would not have allowed the arguments to run quite to the intensity they were argued here (contributing of course to the costs of proceedings in English courts).

Geert.

[If you do use the blog for research, practice submission or database purposes, citation would be appreciated, to the blog as a whole and /or to specific blog posts. Many have suggested I should turn the blog into a paid for, subscription service however I have resisted doing so. Proper reference to how the blog is useful to its readers, will help keeping this so.]

In  SC Commercial Bank Privatbank v Kolomoisky & Ors [2025] EWHC 1987 (Ch), Trower J covers a lot of ground (2025 paras of ground).

At the time of the events with which these proceedings are concerned, claimant Privatbank (‘the Bank’) was Ukraine’s largest bank.  It was declared insolvent by the National Bank of Ukraine on 18 December 2016 and was nationalised over the course of the following days.  These proceedings have been brought by the Bank against two of its founding shareholders, first defendant Igor Kolomoisky and second defendant Gennadiy Bogolyubov (the ‘individual defendants’) and six companies (‘the corporate defendants) said to be owned or controlled by them seeking compensation for harm caused by what the Bank alleges to have been their participation in a fraudulent scheme carried out prior to nationalisation. The Bank also claims in unjust enrichment against a number of defendants.

Of relevance to the blog is the discussion of Article 10 (assimilated) Rome II on unjust enrichment, viz a number of restitution claims, and application of Article 26 Rome II on limitation periods and public policy.

Firstly, on Article 10 Rome II: the law applicable to the claim in unjust enrichment.

The Bank contends that its claims against the Corporate Defendants in unjust enrichment are governed by Ukrainian law per A10(2) and (4) Rome II. The Corporate Defendants contend that any claims against them in unjust enrichment are governed by Cypriot law and they rely on A10(2) Rome II.

For ease of digesting this post: Article 10 Rome II reads

1. If a non-contractual obligation arising out of unjust enrichment, including payment of amounts wrongly received, concerns a relationship existing between the parties, such as one arising out of a contract or a tort/delict, that is closely connected with that unjust enrichment, it shall be governed by the law that governs that relationship.

2. Where the law applicable cannot be determined on the basis of paragraph 1 and the parties have their habitual residence in the same country when the event giving rise to unjust enrichment occurs, the law of that country shall apply.

3. Where the law applicable cannot be determined on the basis of paragraphs 1 or 2, it shall be the law of the country in which the unjust enrichment took place.

4. Where it is clear from all the circumstances of the case that the non-contractual obligation arising out of unjust enrichment is manifestly more closely connected with a country other than that indicated in paragraphs 1, 2 and 3, the law of that other country shall apply.

[1581] The language of A10 requires the court first to consider whether the non-contractual obligation concerns a relationship existing between the Bank and the Corporate Defendants, which is closely connected with the unjust  enrichment.  If it does, the law that governs that relationship must be applied unless A10(4) is engaged.  The Bank submitted that its restitutionary claim against the Corporate Defendants engaged A10(1) because it concerned the relationship arising out of its tortious claim under Ukrainian law against the Corporate Defendants.

[1583] Trower J follows Tear J in Banque Cantonale de Geneve v. Polevent:  it is insufficient that, after the tort had been committed, there was a relationship between victim and tortfeasor “with legal consequences”, to engage A10(1).

Pro memoria: Article 10(1) reads

“If a non-contractual obligation arising out of unjust enrichment, including payment of amounts wrongly received, concerns a relationship existing between the parties, such as one arising out of a contract or a tort/delict, that is closely connected with that unjust enrichment, it shall be governed by the law that governs that relationship”

A relationship “existing” between the parties, it is held, must be one that existed prior to the events giving rise to the claim.

A10(2) was not argued by the parties, nor in fact was A4. This leaves the question, first, of the identification of the country in which enrichment took place, and second, whether by application of A10(4), the laws of that country might be displaced by the laws of another country that is manifestly more closely connected to the non-contractual obligation.

On the first issue [1585]: the locus of the enrichment:

… the country in which the unjust enrichment took place for the purpose of determining the effect of Article 10(3).  There is no real dispute about this. The relevant country is Cyprus, because the Bank’s allegation is that the Corporate Defendants were enriched by acquiring property in the form of prepayments under the RSAs in circumstances in which they have never complied with their purported obligations under the RSAs or returned the Unreturned Prepayments.  It is therefore the Bank’s case that the enrichment comes from the acquisition of property in the form of money which occurred with the crediting of the Corporate Defendants’ accounts at the Cyprus branch of the Bank.

Here Trower J [1593] sides with the bank, not readily it seems but firmly nevertheless.

[1586-1587] the Bank’s arguments are outlined (these have a strong Universal Music echo – of course that case was jurisdictional, not applicable law):

[the Bank argues] the only relevant factor which connects the claim in unjust enrichment to Cyprus is the location of the Corporate Defendants’ bank accounts, which adds nothing because that is no more than the justification for applying Article 10(3) in the first place.  The Bank also submitted that Cyprus as a location was of no particular significance, because the Corporate Defendants could equally have had their accounts with another non-Ukrainian subsidiary of the Bank (e.g., in Latvia).  The only point which mattered was that the destination of the funds should be outside Ukraine.

More positively, Ukraine was said to be manifestly more closely connected to the restitutionary obligation than Cyprus, because the Corporate Defendants received the Unreturned Prepayments as part of a fraudulent scheme controlled by two Ukrainian oligarchs with the purpose and effect of misappropriating funds from a Ukrainian Bank.  The Bank also relied on the fact that the scheme was actually implemented by and with the involvement of a number of individuals, including people said to be the UBOs of the Corporate Defendants, who were based in Ukraine (…).  It also relied on the fact that the Corporate Defendants knew that the Unreturned Prepayments were funded by fraudulent loans from the Bank in Ukraine and the whole structure was designed to conceal breaches of Ukrainian currency control regulations.

[1588] are the defendants’ arguments:

it  could not possibly be said that the connections to Cyprus were not real and substantial.  The Corporate Defendants were not themselves Ukrainian (they were incorporated in England and the BVI) and they were managed by Cypriot professional directors; indeed it was the Bank’s own case that the Individual Defendants’ control of and influence over the Corporate Defendants was through Primecap, a Cypriot corporate services provider established by Cypriot lawyers.  [It was also argued] that Cyprus was the country in which the money which was the subject of the Bank’s claim continued to be located when it was transferred on by the Corporate Defendants.  Another factor which counted against a manifestly closer connection to Ukraine was that the prepayments were received by the Corporate Defendants in US$ rather than UAH.

Of note in the judge’s analysis (which of course kicks off [1589] with the observation that ‘all circumstances’ and ‘manifestly’ mandate a high bar for A10(4)) are

• [1589] the comparison is between countries, not laws: “the court’s task is to ascertain whether there is a country, which has a manifestly closer connection to the restitutionary obligation – i.e., the focus is on the country not the law.  In the present case, the exercise required by Article 10(4) is a comparison of the connection between the restitutionary obligation and Cyprus on the one hand and between the restitutionary obligation and Ukraine on the other.”
• [1590] “The comparison is between connections to Cyprus and connections to Ukraine.  Connections to third countries may go to show that not every factor apart from the place of receipt points inexorably to Ukraine, but if they do not point to Cyprus, their usefulness is limited”. (Unless of course, one assumes, if they were to point to a third country hence also its applicable law altogether, but that does not seem to be the case here).

I do not think this is correct. Those wishing to show that A10(3) is to be dislodged by application of A10(4), need to show that that the obligation in unjust enrichment, is manifestly more closely connected to another country, following from all circumstances of the case. Arguably the connections to third countries undermine the A10(4) analysis and therefore are most useful: even if they do not point to the A10(3) country. Of note in this context is that A10(3) is not the result of a most closely connected analysis: it is simply a vector introduced for predictability and certainty. I imagine this may have featured in permission to appeal.

• [1591]: control over Primecap’s activities was exercised by individuals in Ukraine, both generally and for the specific transactions concerned. “The connection to Cyprus is in fact and substance more limited than the place of its establishment and operations might otherwise indicate.  The enrichment occurred in Cyprus (a factor which will always of course be present where it said that Article 10(4) should displace the prima facie rule in Article 10(3)), but the expense was sustained by the Bank in the Ukraine.  I also think that, because steps which gave rise to an unjust enrichment were component parts of a fraud practised on a Ukrainian bank, structured in the way that it was to avoid Ukrainian currency control obligations, and closely interrelated to torts governed by Ukrainian law in which the loss was sustained in Ukraine, points to a very close connection to Ukraine.”

The finding in favour of engaging A10(4) comes despite what the judge [1592] called an argument “with real substance”: the DNA of the whole scheme:

“a transfer out of Ukraine, and (more importantly for the claim in unjust enrichment) a receipt by a recipient outside Ukraine, was an essential element of what all parties accept (for different reasons) was a loan recycling scheme intended to avoid Ukraine’s currency control regulations.  I agree that the fact that it was necessary for any enrichment to occur outside Ukraine, detracts from any connection between the restitutionary obligation and Ukraine, and makes it more difficult for the Bank to say that the connection to Ukraine is manifestly closer than Cyprus.”

All in all it is the ‘control’ element it seems which swayed the judge. If that finding stands, it would be useful eg in the Dyson claims.

Next, on the application of Article 26 Rome II on limitation periods and public policy.

The findings on A26 were made obiter [1995] ff, and with reference ia to the Court of Appeal in Begum v Maran: in essence, Trower J notes the very high bar for Article 26 and would have held that that bar has not been reached in casu.

If and when I hear of an appeal, I shall update.

Geert.

EU Private International Law, 4th ed, 2024, Chapter 4.

Consideration ia of A10 Rome II: law applicable to unjust enrichmentSC Commercial Bank Privatbank v Kolomoisky & Ors [2025] EWHC 1987 (Ch) http://www.bailii.org/ew/cases/EWH…

— Geert Van Calster (@gavclaw.bsky.social) 2025-08-06T10:16:52.929Z

[If you do use the blog for research, practice submission or database purposes, citation would be appreciated, to the blog as a whole and /or to specific blog posts. Many have suggested I should turn the blog into a paid for, subscription service however I have resisted doing so. Proper reference to how the blog is useful to its readers, will help keeping this so.]

Cathay Biotech Inc v Wegochem Europe BV ECLI:NL:RBAMS:2025:3091 is a judgment of relevance to the meaning of ‘arising from’, used frequently in Rome II, Regulation 864/2007; as well as a salutary lesson in how not to apply Article 4 Rome II.

First, on the issue of ‘arising from’ in Article 8.

An alternative to ‘arising from’ used in Rome II is ‘arising out’, for instance in Article 7’s environmental claims: see e.g. Begum v Maran and see my paper on A7 here.

In China, patent infringement judgments have been issued regarding the production of nylon. PRC infringement continues by other entities that have also been held to account by Chinese courts. In current proceedings the patent holder sues a Dutch buyer of the nylon for unlawful conduct, arguing it knew or consciously accepted the significant risk that it was trading in infringing products.

In determining applicable law under Rome II, Cathay Biotech argue A4 is engaged; Wego Europe suggests A8(1) applies:

Article 8
Infringement of intellectual property rights
1. The law applicable to a non-contractual obligation arising from an infringement of an intellectual property right shall be the law of the country for which protection is claimed.
2. In the case of a non-contractual obligation arising from an infringement of a unitary Community intellectual property right, the law applicable shall, for any question that is not governed by the relevant Community instrument, be the law of the country in which the act of infringement was committed.
3. The law applicable under this Article may not be derogated from by an agreement pursuant to Article 14.

The court sides with Cathay Biotech: [5.6]:

The court agrees with Cathay Biotech that it bases its claim on unlawful conduct by Wego Europe… Although this alleged unlawful conduct by Wego Europe originates from the theft of trade secrets by third parties and (subsequent) patent infringements committed by third parties, this does not mean that there is an obligation between Wego Europe and Cathay Biotech ‘arising from’ an infringement of an intellectual property right as referred to in [A8(1) Rome II]. After all, the focus is on the unlawful conduct of Wego Europe described above, not on the question of whether Wego Europe (itself) infringes Cathay Biotech’s Chinese patents. The invocation of a patent right is therefore not the core of the dispute. The scope of the Rome II Regulation and Article 8 means that the aforementioned article only concerns claims relating to a non-contractual infringement of these (intellectual property) rights.

I disagree. Cathay’s claim as it is summarised in 4.4 walk and talks intellectual property rights infringement:

Cathay Biotech bases its claim, in summary, on the following. Wego Europe acts unlawfully towards Cathay Biotech by importing and distributing [long chain dicarboxylic acid] LCDA from the Facility in Europe, while knowing that the production of these LCDA by Hilead and the Users infringes Cathay Biotech’s Chinese patents and that many Chinese court rulings in this regard are being systematically ignored. Wego Europe facilitates the unlawful actions of Hilead and the Users by creating a market for these parties and knowingly profits from their unlawful conduct.

Patent infringement is not a context for Cathay’s claim against Wego: it is its roots and branch. The statutory construction of both ‘arising from’ and ‘out’ (similarly, see Lliuya v RWE where no time was wasted at all on whether climate claims ‘arise out’ of environmental damage) instruct a causal link at the lower level of causal intensity.  Cathay’s claim and its formulation approaches that of conspiracy to cause or at the very least purposedly profit from patent infringement. That in my view must fall within Article 8.

Once Article 8 so dismissed, the court then goes off the rails in its Article 4 locus damni analysis. [5.7 and 5.8]

• it links A4 Rome II squarely to A7(2) Brussels Ia, recalling that Article’s split between Handlungsort and Erfolgort.
• It then squarely suggests that within the A4 Rome II analysis, claimant may chose either Handlugsort or Erfolgort as determining the applicable law (plainly wrong);
• it identifies each distribution center within the EU as a Handlungsort. This is as such an interesting proposition, echoing my suggestions for competition law; yet it is completely out off place in the A4 Rome II analysis.
• it considers Chinese law as applicable law under the Handlungsort analysis (although this would require Cathay’s economic loss (its consolidated accounts are in China) to be considered as ‘direct’ damages per A4, instead of eg the place of the loss of market share in the EU Member States as places of direct damage);
• it finally ends up [5.10] in Dutch law as applying to the claim as a whole under A4(3)’s escape clause, in essence because The Netherlands is held to be the locus delicti commissi: Wego is held to have organised its nylon distribution entirely from The Netherlands.

The judgment amounts to very poor engagement with Rome II.

Geert.

EU Private International Law, 4th ed. 2024. Chapter 4.

Applicable law, patent infringement claimInteresting judgment on (non)application of A8 Rome II viz EU-domiciled purchaser of product made following patent violationMeaning of 'arising from' IPR infringementCathay Biotech v Wegochem ECLI:NL:RBAMS:2025:3091 deeplink.rechtspraak.nl/uitspraak?id…

— Geert Van Calster (@gavclaw.bsky.social) 2025-05-27T07:00:33.048Z

A note on Sidoli v Sidoli [2025] EWHC 1425 (Ch) in which Dew DM deals with a classic issue of characterisation aka qualification,  namely whether the claim at issue is one in rem or one in succession.

[Note [15] an interesting side issue viz the ethics of having deciding a case with reference to an earlier one, Del Curto v Del Curto, with which he disagrees and in which he was on the losing side].

The Italian proceedings, recognition of which is being sought, vindicate Claimants’ rights over Davide Sidoli’s estate, including their rights to assets situated in England and Wales. This in essence begs the question whether the subject matter of the action in Italy was immoveable property not in Italy, hence engaging the Mozambique rule. Kireeva v Bedzhamov features of course.

[27] Dew DM remarks justifiably with respect to characterisation

Claims, in whatever jurisdiction, often have a multiplicity of subject-matter, even more so where the dispute relates to an entitlement to assets from an estate, where the subject-matter can variously be described as the Will, the estate generally, or the individual assets of that estate. Conflicts of law principles, however, often ask the court to decide in an overall sense what the subject matter of a dispute is before determining what system of law applies to it.

[28] it follows that the approach not to be followed is that if one can identify within the claim an asset which is both immoveable and out of the original court’s jurisdiction then any registration under the 1933 Act must be set aside. [29] The subject matter of the claim that was before the Italian Court was Davide’s succession. It was that which was at issue and it was the determination of those issues of succession which gave the Claimants, under Italian law, a right to compensation (and other orders) over the whole of Davide’s estate.

Hence the subject matter of the proceedings in Italy was not immoveable property. However he then holds, having analysed the 1933 Act in both its historical context and its statutory language, that the claim at issue falls within the meaning of the ‘administration of the estate of a deceased person’ over which as a result of the provisions of the 1933 Act, the Italian courts did not and should not have exercised jurisdiction.

Contrasting Sidoli with Del Curto, it is clear that a clarification by the Court of Appeal may be warranted seeing as the outcome of a registration process may now depend on which first instance judge one finds itself in front of.

Geert.

In conflict of laws exam season, excellent example of relevance of qualification aka characterisationWhether claim is in rem or in succession, leading to different outcomes for recognition of Italian judgment in E&WSidoli v Sidoli [2025] EWHC 1425 (Ch)www.bailii.org/ew/cases/EWH…

— Geert Van Calster (@gavclaw.bsky.social) 2025-06-11T07:06:15.153Z

[If you do use the blog for research, practice submission or database purposes, citation would be appreciated, to the blog as a whole and /or to specific blog posts. Many have suggested I should turn the blog into a paid for, subscription service however I have resisted doing so. Proper reference to how the blog is useful to its readers, will help keeping this so.]

The CJEU has held early July in C‑99/24 [Chmieka], on the application ratione temporis of Brussels Ia (cq Brussels I), the application of Article 24(1) [22(1)]’s rights in rem exclusive heads of jurisdiction, ‘contract’ v ‘tort’, and the anchor defendant mechanism: a whole bunch of jurisdictional issues resulting from, on the merits, a fairly straightforward case it seems.

The issue arose in an action for payment of compensation, by a Polish municipal authority against a natural person domiciled in The Netherlands, for the non-contractual use of immovable property situated in Poland. That person was one of the daughters of the original tenant. The rental agreement having been entered into by the mum in 1994, an eviction order was issued in 2007. The mum and, it seems, some of the daughters did not leave the property and in 2013 the municipality asked and obtained a compensation order for the use of the house between 2011 and 2012. That order was served on the family in 2013 (only one of the family members having signed for receipt), and objected to by one of the daughters in a procedure launched in 2023. In that procedure the daughter argues ia that the Polish courts lacked jurisdiction in the 2013 proceedings seeing as, she argued, she had herself been domiciled in The Netherlands since 2007.

Four questions were dealt with.

First, does Brussels I or Brussels IA apply? The question is academic, for the relevant jurisdictional provisions are identical in wording in BIa and BI. The CJEU decided to answer the question anyway. Per A66(1) BIa, it applies only to legal proceedings “instituted … on or after 10 January 2015”. The uncertainty concerns whether the concept of ‘institution of proceedings’ should relate to the date on which the municipality brought the action for payment against the
defendant (15 March 2013) or the date on which the defendant lodged the
statement of opposition (7 July 2023) with a request for review of the case.  The CJEU goes with the former, meaning that in the case at issue, Brussels I applies: [38] , with reference to Hanssen Beleggingen and AMS Neve:

a request for review of the case concerned, such as that at issue in the main proceedings, must be regarded as part of the continuation of the initial action, since that request made by the defendant is an application initiating proceedings which does not constitute proceedings separate from those opened by the initial action, but an extension of that action.

This finding will particularly be of relevance for proceedings where BI and BIa do materially differ.

Next, the potential role for A22 [24]’s right in rem (and tenancies) jurisdiction. In current case the CJEU very much draws the ‘need for restrictive interpretation of the exclusive jurisdictional rules’ card:

[53] (with reference to CJEU Reitbauer):

the assessment of such an action seeking compensation does not require on-site investigations, nor does it involve the assessment of facts or the application of rules and practices of the locus rei sitae in such a way as to justify conferring exclusive jurisdiction on a court of the Member State in whose territory that property is situated

[54] with reference to CJEU Lieber and Gaillard:

First, an action for payment of compensation for the non-contractual use of immovable property, after the termination of a tenancy agreement relating to it, is not covered by that expression because such an action is not based on a right in rem, having effect erga omnes, but a right in personam, which may only be relied upon against the alleged debtor from whom that compensation is sought. Second, an action such as that brought against [the daughter], who is classified as a third party in relation to the terminated tenancy agreement, cannot be included in the concept of ‘tenancies of immovable property’, within the meaning of [A22(1), because such an action does not directly relate to the rights and obligations arising from that tenancy and is therefore not based on the relationship of landlord and tenant

[55]

paragraph 163 [of the Schlosser report suggest that] actions for damages based on infringement of rights in rem do not fall within the scope of [A22] because in that context the existence and content of such rights in rem, usually rights of ownership, are only of marginal significance.

Finally, the interpretation of Article 5 [7] forum contractus v forum delicti: does residing in another person’s property without legal title following the termination of the tenancy agreement authorising the occupation of that property, constitutes tort, delict or quasi-delict?

[58-59] the Court reminds us of the need for autonomous and restrictive interpretation.

[60] with reference to CJEU Obala and Hrvatske Sume

the concept of ‘matters relating to tort, delict or quasi-delict’, within the meaning of [A5(3) BI] includes all claims which, first, do not concern ‘matters relating to a contract, within the meaning of [A5(1)(a)] and, second, seek to establish the liability of a defendant, so that it is necessary to ascertain whether those two conditions are satisfied

[61] with reference to Holterman and Hrvatske Sume

the independent concept of ‘matters relating to a contract’..covers any claim based on an obligation freely consented to by one person towards another

In the case at issue, [62] the facts suggest an A5(3) [7(2)] jurisdiction because

a claim for compensation such as that brought by the applicant in the main proceedings against [the daughter] is not covered by the concept of ‘matters relating to a contract’ because such a claim is based on the fact that a person has occupied immovable property without the free consent of the landlord expressed in the form of a tenancy agreement.

However [67] the national court must

ascertain whether, in the dispute before it, a ‘harmful event occurred’, within the meaning of [A5(3) BI], owing to [the daughter’s] conduct and, more specifically, whether [she] personally occupied the immovable property concerned during the period in question in the main proceedings, that is to say between 2011 and 2012. In the light of the order for reference, it has not been ruled out that [the daughter] resided exclusively in the Netherlands during that period. In the absence of such occupation on her part, no connecting factors making [A5(3)] applicable can be identified.

Finally, the application of A6 [8]’s anchor defendant mechanism: must the Polish court examine the action brought before it so as to decide jointly in respect of all the persons concerned by that action who have resided in the housing in question? A possibility arises from Polish law that different judgments may be delivered in respect of each of those persons, depending on whether the individual concerned did or did not occupy that housing after the termination of the tenancy agreement in question, because there is no joint and several liability between those persons.

Here [71] the CJEU first (with reference to Profit Sim Investment and Athenian Brewery] first of all recalls that the mere fact that the result of one of the proceedings concerned may have an effect on the result of the other does not suffice to characterise the judgments to be delivered in the two proceedings as ‘irreconcilable’. [72-73] The national court must also satisfy itself that the claims brought against more than one defendant are not intended artificially to satisfy the conditions for the application of the anchor defendant mechanism.

Here, [75] “it it seems unlikely that there was, on the date that the action was brought, the same situation of fact and law from which there could have been a risk that ‘irreconcilable judgments’, within the meaning of [A6(1)]”: that is precisely because [76]

[while] the claims for compensation brought by the applicant in the main proceedings against the four persons concerned by that action are, admittedly, connected by their subject matter, the purpose of those claims being identical… it is apparent from the order for reference that, under the applicable provisions of Polish law, first, those claims are severable in so far as different judgments could be delivered in respect of those persons, depending on whether each of those defendants occupied the property concerned during the relevant period, and, second, there is no joint and several liability between them, which appears to imply an individual examination of the facts alleged.

Quite a lot of ground covered.

Geert.

Royal Football Club Seraing
Football : la Cour consacre le droit, notamment pour les clubs et les joueurs, d’obtenir un contrôle juridictionnel effectif des sentences arbitrales rendues par le Tribunal arbitral du sport

Alace
Espace de liberté, sécurité et justice
Protection internationale : la désignation d’un pays tiers comme « pays d’origine sûr » doit pouvoir faire l’objet d’un contrôle juridictionnel effectif

The Minister for Children, Equality, Disability, Integration and Youth
Principes du droit communautaire
Droit d’asile : un État membre ne peut invoquer un afflux imprévisible de demandeurs de protection internationale pour se soustraire à son obligation de couvrir les besoins fondamentaux des demandeurs d’asile

BAJI Trans
Le principe de l’application rétroactive de la loi pénale plus favorable s’étend à une sanction qualifiée d’administrative en droit national lorsqu’elle est de nature pénale au sens du droit de l’Union

Volkswagen (Droit à réparation adéquate)
Rapprochement des législations
Un constructeur automobile ne peut pas s’exonérer de sa responsabilité pour un dispositif d’invalidation illicite du fait de l’existence d’une réception CE par type

France / CWS Powder Coatings e.a.
Rapprochement des législations
La Cour de justice confirme l’annulation de la classification du dioxyde de titane sous certaines formes de poudre comme substance cancérogène

Banca Mediolanum
Fiscalité
Fiscalité : une réglementation nationale prévoyant d’imposer dans une mesure supérieure à 5 % de leur montant les dividendes que les intermédiaires financiers perçoivent, en tant que sociétés mères, de leurs filiales résidant dans d’autres États membres est contraire au droit de l’Union

Veracash
Libre circulation des capitaux
Services de paiement : l’utilisateur d’une carte de paiement est privé du droit d’obtenir le remboursement d’une opération de paiement non autorisée dont il a eu connaissance s’il tarde à la signaler à son prestataire de manière intentionnelle ou gravement négligente

Daka
Indépendance des juges : la double affectation des juges à la Cour suprême polonaise est compatible avec le droit de l’Union

Adrar
Espace de liberté, sécurité et justice
Avocat général Spielmann : le juge qui contrôle la légalité du placement en rétention d’un ressortissant d’un pays tiers en séjour irrégulier doit vérifier que le principe de non-refoulement ne s’oppose pas à son éloignement

UBS Group e.a. / Commission
Concurrence
Concurrence : le Tribunal confirme la participation de Credit Suisse à une entente dans le secteur des opérations de change au comptant mais réduit de 83,2 à 28,9 millions d’euros le montant de l’amende qui lui est imposée

Le Pen e.a. / Parlement
Le Tribunal confirme la décision du Parlement européen de recouvrer des sommes indument perçues par M. Jean-Marie Le Pen
The General Court of the European Union upholds the decision of the European Parliament to recover sums unduly received by Jean-Marie Le Pen

Pologne / Commission (Annulation rétroactive de mesures provisoires)
Avocate générale Kokott : pas d’astreinte pour la Pologne concernant l’extraction de lignite à Turów

Katholische Schwangerschaftsberatung
Avocate générale Medina : le licenciement d’un employé par une organisation catholique en raison du retrait de cet employé de l’Église catholique peut constituer une discrimination fondée sur la religion

Meta Platforms Ireland (Compensation équitable)
Aide d'État
Avocat général Szpunar : les États membres peuvent adopter des mesures de soutien pour garantir l'effectivité des droits des éditeurs de presse pour autant que ces mesures ne portent pas atteinte à la liberté contractuelle