Flux européens

Caisse nationale d’assurance pension-test
Libre circulation des personnes
Travailleurs frontaliers : pas d’obligation de faire inscrire au Luxembourg un PACS conclu dans un autre État membre 

Caisse nationale d’assurance pension
Libre circulation des personnes
Travailleurs frontaliers : pas d’obligation de faire inscrire au Luxembourg un PACS conclu dans un autre État membre 

Orde van Vlaamse Balies e.a.
Lutte contre la planification fiscale agressive : l’obligation imposée à l’avocat d’informer les autres intermédiaires impliqués n’est pas nécessaire et viole le droit au respect des communications avec son client

Orde van Vlaamse Balies e.a.
Lutte contre la planification fiscale agressive : l’obligation imposée à l’avocat d’informer les autres intermédiaires impliqués n’est pas nécessaire et viole le droit au respect des communications avec son client

Orde van Vlaamse Balies e.a.
Lutte contre la planification fiscale agressive : l’obligation imposée à l’avocat d’informer les autres intermédiaires impliqués n’est pas nécessaire et viole le droit au respect des communications avec son client

Google (Déréférencement d’un contenu prétendument inexact)
Droit à l’effacement (« droit à l’oubli ») : l’exploitant du moteur de recherche doit déréférencer des informations figurant dans le contenu référencé lorsque le demandeur prouve qu’elles sont manifestement inexactes

Google (Déréférencement d’un contenu prétendument inexact)
Droit à l’effacement (« droit à l’oubli ») : l’exploitant du moteur de recherche doit déréférencer des informations figurant dans le contenu référencé lorsque le demandeur prouve qu’elles sont manifestement inexactes

The European Commission has released today its Proposal for a Council Regulation on jurisdiction, applicable law, recognition of decisions and acceptance of authentic instruments in matters of parenthood and on the creation of a European Certificate of Parenthood. However, it is not currently available in the official languages of the European Union, only in English at https://ec.europa.eu/info/sites/default/files/com_2022_695_1_en_act_part1.pdf

WhatsApp Ireland / Comité européen de la protection des données
Droit institutionnel
Le Tribunal rejette comme irrecevable le recours de WhatsApp contre une décision du Comité européen de la protection des données (CEPD)

Dooley & Ors v Castle Trust & Management Services Ltd [2022] EWCA Civ 1569  is the successful appeal against Russen HHJ’s first instance judgment which I discussed here – readers best consult that post for context, before reading on. For reasons I explain in that post, judicial relations between the UK and Gibraltar pre-Brexit engaged the Brussels 1968  Convention.

Carr LJ wrote the reasons for overruling the judgment, and the Court of Appeal does find there is jurisdiction in E&W. [35] she reminds us of the evidentiary burden at the jurisdictional stage

For the purpose of the evidential analysis, the standard lies between proof on the balance of probabilities and the mere raising of an issue. On contentious factual issues, the court takes a view on the material available if it can reliably do so; if a reliable assessment is not possible, there is a good arguable case for the application of the gateway if there is a plausible (albeit contested) evidential basis for it. The test is context-specific and flexible, and if there is an issue of fact the court must use judicial common sense and pragmatism, making due allowance for the limitations of the material available at an early point in the proceedings.

[41] ff the judge is held to have wrongly treated the relationship between Article 5 (mostly known for forum contractus and forum delicti reasons but also including a trust forum: A5(6) concerning trust-related claims in the courts of the trust’s domicile) and Article 13 (the forum consumptoris). [43] Articles 13 to 15 make up an entirely separate and self-contained section and there is no need or indeed allowance to first check whether Article 5’s conditions apply (including on the conditions for a ‘contract’ to exist), subsequently to check whether A13 ff (including the conditions for a ‘consumer contract’ to exist) apply with a consequence of disapplying A5. Both Opinion AG and judgment in CJEU C-96/00 Gabriel are called upon in solid support.

[48] Jurisdiction under Article 13 is thus a self-standing lex specialis and derogation from the general rule in Article 2. If jurisdiction is not established under Article 13, it may nevertheless arise under Article 5(1). But it is not necessary to establish jurisdiction under Article 5(1) in order to make it out under Article 13.

[49] The Judge’s error on this issue was material, in the light of his conclusion that any claim against Castle would fall within Article 5(6) (and so could not fall within Article 5(1)).

Continuing then on A13, the contentious issue is whether the Judge was wrong to conclude that the pensioners did not have the better of the argument for the purpose of A13:  i) that the proceedings were “proceedings concerning” contracts between the pensioners and Castle for the supply of services; and, if so, ii) that in England and Wales the conclusion of the contracts was preceded by specific invitations addressed to the pensioners.

Re i), [55] the Judge appears to have concluded that there was no contract, by reference to the lack of clarity as to the services to be provided by Castle beyond the contents of the Welcome Letter. On appeal Castle concede that a contract for services did exist between each pensioner and Castle, however that the services to be provided by Castle under each contract were limited to the technical execution of the relevant Deed of Adherence in each case and that therefore the proceedings, which made no complaint about the technical execution of the Deeds, were not “proceedings concerning a contract”.

Carr LJ [57ff] insists that the existence of a trustee-beneficiary relationship does not preclude the co-existence of a contract between the same parties, and, referring to language with strong ‘contract’ echo in the marketing, holds that there was indeed a contract between each of the pensioners and Castle, a relationship that went beyond mere technical execution of the deeds.

[61] ff then deals with ii), with the Court holding there is a good arguable case that each pensioner received (in the State of their domicile) a specific invitation addressed to them, such invitation crystallising at the moment that Management Services sent or handed them an application form. Carr LJ suggest that such an invitation might be sufficient for A13(3) purposes without more: A13 does not contain any express requirement for a connection between the invitation and the trader; the focus is on the existence of a sufficiently strong connection between the contract and the country of domicile of the consumer. However the claimants concede that there was a further requirement, namely that the invitation had to be made on behalf of the trader, here Castle. Arguendo, [66] Carr LJ holds 

there is a plausible evidential basis for the proposition that there was some sufficient connection between MS and Castle, including the possibility that MS was acting for Castle as a “middleman” of the type envisaged in the Schlosser Report (by cross-reference to the Giuliano/Lagarde Report). It is, for example, not in dispute that MS obtained Castle’s application forms and provided them to the pensioners. It appears that MS procured or facilitated production of all the complex documentation and declarations as required by Castle from the pensioners in the build-up to the application forms and transfers themselves.

[68] ff are the proceedings then “proceedings concerning” the contracts in question? The Court holds they are, at a general level for the proceedings are not about mismanagement of the trusts once established, but rather that the pensioners should never have entered the Schemes in the first place, and at a more specific level for the claims to relate to specific issues in the services agreement.

The claims can now proceed to trial where, as I noted before, applicable law will be one of the contested issues.

Geert.

EU Private International Law, 3rd ed. 2021, Heading 2.2.9.2.1 and 2.2.9.2.2.

 

Successful appeal on jurisdiction (jurisdiction now established) under Brussels Convention (that's right: the 1968 Convention)
For the 1st instance judgment see https://t.co/JE8yVUJkO3

Dooley eos v Castle Trust & Management Services [2022] EWCA Civ 1569https://t.co/8uUVpYv0DU

— Geert Van Calster (@GAVClaw) November 30, 2022

1952-2022 : Forum des magistrats extraordinaire à l’occasion du 70e anniversaire de la Cour de justice de l’Union européenne
1952-2022 : Forum des magistrats extraordinaire à l’occasion du 70e anniversaire de la Cour de justice de l’Union européenne

1952-2022 : Forum des magistrats extraordinaire à l’occasion du 70e anniversaire de la Cour de justice de l’Union européenne

RWE’s case (seeking huge damages for the impact on its assets following the Dutch coal phase-out) under investor-State dispute settlement (ISDS) continues I understand (I would also suggest it is problematic given the ECT’s fork in the road provisions), while Uniper’s will be dropped as part of its bail-out conditions. Yet this post is about yesterday’s first instance Uniper judgment and RWE judgment in the Dutch courts. I use the Uniper judgment for this post, the RWE judgment is not materially different as to its legal analysis.

Of note is first of all that these judgments are by the ‘commercial’ chamber at the Den Haag court, not an ‘environmental’ chamber. This might be relevant for those wishing to present the judgment as one of a maverick band of environmental crusaders.

RWE and UNIPER’s claims are based on ‘A1P1‘ (Article 1 of the First Protocol to the European Convention on Human Rights) and Article 17 of the Charter of Fundamental Rights of the EU, both of which protect the right to property.

[5.6] the court lays out the benchmarks (translation courtesy of DeepL and double-checked by me):

( a) is there “possession” (property)

( b) is there “interference,” that is, deprivation or regulation of the right to property?

If both these conditions are met, then the following requirements are examined:

( c) is the interference “lawful,” that is, provided for by law;

( d) if so, does the infringement have a legitimate objective that serves to promote the “general interest,” and

( e) if so, is there a “fair balance,” that is, a reasonable balance, between the requirements of the general interest and the protection of the fundamental rights of the individual?

The latter “fair balance test” is not satisfied if there is an individual and excessive burden on the person concerned.

[5.9] the State had argued that uncertain future earnings are not caught by A1P1 however the court [5.10] disagrees. The corporations have a long-term guarantee to use of the site, ia via a long-term lease. That the earnings might potentially not qualify as possessions, does not diminish the qualification of the guaranteed economic interest as ‘property’.

Interference, lawfulness and general interest are established each in one para [5.11 ff] , and did not seem to be the focus of much discussion even by the parties.

Fair balance is discussed extensively [5.14] ff. [5.15.3] the court qualifies the measure as regulatory interference and not de facto expropriation (the latter would have triggered guaranteed compensation rights). Even if electricity generation using coal will be phased-out, after the end of the transition period, Uniper will continue to have use of the site and has indeed already assumed such use in announced coal-free business plans.

The court then discusses the foreseeability at length, concluding [5.16.31] that although the Dutch Government frequently expressed support for modern facilities generating electricity using coal, this was always done with the caveat that that method had to be compatible with the Dutch climate commitments. [5.16.35] the ETS permit defence is dismissed.

[5.17.9] the court, having studies the various scientific reports presented to it, holds that there are most definitely alternative uses for the site. That their profitability is uncertain, is simply also a feature of energy markets as a whole.

[5.18] the court holds that the Dutch coal phase-out does have an effect on reduced CO2 emissions (carbon leakage is not accepted as being of much relevance to that conclusion). For the measure to be considered not the least trade-restrictive, the Dutch State is held to have a wide margin of manoeuvre and it is not established that the State gravely erred in opting for a coal phase-out [5.18.7]. The long transition period is held to substantiate enough room for compensation [5.19.6], again with reference to the volatility of market returns as being part and parcel of energy markets full stop.

Like the Dutch judgments eg in Urgenda, this judgment on protection of property rights viz GHG emission reduction policies, is likely to serve as an international benchmark. It can be appealed, of course.

Geert.

Dutch #RWE #UNIPER coal phase-out judgment is here https://t.co/aJWRCE9H6H
Held ia: phase-out and closure compatible with European Convention, A1P1 #ECHR
Court calls closure foreseeable, transition period testifies to proportionality. https://t.co/qwhU9HZ24j

— Geert Van Calster (@GAVClaw) November 30, 2022

Funke
Avocate générale Ćapeta : les opérateurs économiques ont le droit de demander qu’une notification RAPEX soit complétée sur le fondement des dispositions du traité relatives à la libre circulation des marchandises

E. D. L. (Motif de refus fondé sur la maladie)
Espace de liberté, sécurité et justice
Selon l’avocat général Campos Sánchez-Bordona, un risque grave pour la santé de la personne dont la remise est demandée peut justifier la suspension d’un mandat d’arrêt européen, mais non le refus pur et simple de son exécution

Autriche / Commission
Aide d'État
Construction de nouveaux réacteurs nucléaires : le Tribunal rejette le recours introduit par l’Autriche contestant l’aide à l’investissement hongroise approuvée par la Commission

The CJEU last week held in C-358/21 Tilman v Unilever, the context of which I reviewed here. Krzysztof Pacula has initial analysis here and also refers to the application of the consent for choice of court issues in Ebury Partners.

One of the parties’ (Unilever’s) GTCs  are contained on a website, and their existence is ‘flagged’ in the written main contrac, without there bring a tickable box that click-wraps the agreement. Does that suffice to bind the parties as to the GTC’s choice of court (in favour of the English courts)? Note the courts were seized pre-Brexit; the UK’s Lugano troubles are not engaged.

The CJEU answers exactly along the lines I suggested in my earlier post: no impeding of commercial practice; need for the contracting party relying on the clause to have drawn the attention to the clause; need for that clause to be durably consultable and storable; finally it is the national court’s task to verify  the formation of consent in these factual circumstances. That there is no box that can be ‘ticked’ is not conclusive [52].

All in all a welcome support for commercial choice of court.

Geert.

EU Private International Law, 3rd ed. 2021, Heading 2.2.10.

For my earlier review of the issues see https://t.co/OKcx31TlsB https://t.co/b9KWaSzaKB

— Geert Van Calster (@GAVClaw) November 24, 2022

Sedgwick v Mapfre Espana Compania De Seguros Y Reaseguros Sa [2022] EWHC 2704 (KB) discusses the application of Article 19 Rome II on direct actions against insurers, and the procedural carve-out of the Regulation.

Claimant lives in Wales. At the time of the accident she was on her honeymoon, staying at the Hotel Blue Sea Callao Garden in Santa Cruz which was owned and operated by a company registered and incorporated in Spain. She was descending an inadequately lit concrete staircase when she fell and sustained severe fracture injuries to her left knee and to her right heel.

Spanish law is the governing law of the insurance contract/policy which provides the tortfeasor with the right of indemnity within the terms of the policy and that the claimant has, under Spanish law, a direct right of action against the insurer. Parties also agree that Spanish law applies per A4(1) Rome II.

The scope of the law applicable is set out in A15 Rome II, which reads in relevant part: “…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;…”

A1(3) Rome II carves out all matters of procedure and evidence to the law of the forum court: “This Regulation shall not apply to evidence and procedure “. I have reported on the carve-out frequently (see eg here and linked postings there, or use search tag ‘evidence and procedure’).

On a technical side-note, Matthew Hoyle here (he also has a general excellent note on proving foreign law here) correctly notes a confusion with the judge [11] on the issue of proving foreign law, seeing as she conflates assumption of English law as the lex causae when the content of a suggested foreign law is not proven and pleaded (it was so in the case at issue), and assumption in certain circumstances, of the foreign law as being identical to English law.

Issues for determination, are:

i) the resolution of a series of questions relevant to the award of general damages (for non-pecuniary loss) under Spanish law; these are purely issues of Spanish law and of no interest to the blog.

ii) whether the claimant is able to pursue a claim for subrogated losses on behalf of her travel insurer. The contentious issue is whether the claimant herself is able to bring a claim for subrogated losses or whether the claim must be brought in a separate action by the insurer.

[60] if the claim is to be brought separately, it can no longer so be brought because it is now time-barred.

Defendant submits that the claim for those losses incurred by the travel insurer must be brought in accordance with Spanish law and that the proper person entitled to bring a claim against the defendant insurer under A43 Spanish Insurance Contract Act 50/1980 is the third party insurer, not the claimant, as those subrogated losses are losses of the third party payer.

Claimant submits that Spanish law is relevant only to the extent that, as the applicable law of the tort, it provides for recovery of expenses. Spanish law does not govern the relationship between the claimant and the travel insurer, nor the travel insurer’s rights of subrogation by means of the claimant’s claim under those policies. Those matters are regulated, it is argued, by the law governing the insurance policy, in this case, English law, consequential to A19 Rome II (“where a person (the creditor) has a non-contractual claim upon another (the debtor) and a third person has a duty to satisfy the creditor, or has in fact satisfied the creditor in discharge of that duty, the law which governs the third person’s duty to satisfy the creditor shall determine whether and the extent to which the third person is entitled to exercise against the debtor the rights which the creditor had against the debtor under the law governing their relationship.”)

The issue therefore is whether the question of whether the insurer may bring a claim in the name of the insured (rather than by other means) a question of “whether, and the extent to which” the insurer is entitled to exercise the rights of the insured against the third party? Lambert J [73] says it is, as a matter of language and construction, and she also expresses it (less immediately convincing to my mind) as an issue of common sense:

‘Putting the matter another way, it would be distinctly odd if English law determined the right of subrogation and limits upon that right (e.g. the legal principle that there must be full indemnity before subrogated rights attach) but an important aspect of the English law of subrogation (namely that the claim may and must be brought in the name of the insured) may not apply depending on where loss is caused which is to be indemnified.’

Finally, iii) the appropriate rate of interest to apply to the damages award, whether the Spanish (penalty) rate of interest applies or a rate applied under s 35A [E&W] Senior Courts Act 1981. Clearly the issue is whether penalty interest rules are substantive rather than procedural: in the latter case, they are carved out from Rome II, and English law as the lex causae applies.

Troke v Amgen is referred to, and the judge in Swedgwick decides [101]

Whether the decision in Troke is binding upon me or not, I agree with its conclusion and the underlying reasoning which I endorse and follow.

and [102]

the penalty interest provisions are discretionary; they may be excluded if there is a good reason to do so and they are procedural in character.

In my review of Troke I noted its reasoning was unconvincing. Lambert J [101] adds more arguments here, and I find these more convincing, if not conclusive.

Geert.

EU Private International Law, 3rd ed. 2021, Heading 4.8.

! #travellaw, accident abroad
Various issues on the application of A19 Rome II re actions against insurers, and the nature of interest rates as 'procedural' hence carved out from Rome II

More soon on the blog

Sedgwick v Mapfre [2022] EWHC 2704 (KB) https://t.co/EkEjf6IjNk

— Geert Van Calster (@GAVClaw) October 27, 2022

The Court of Justice delivered today its judgement in case C‑358/21 (Tilman SA v Unilever Supply Chain Company AG), which is about consent to a jurisdiction clause contained in the general terms and conditions to which the contract concluded in writing refers by the inclusion of a hypertext link to a website:

“Article 23(1) and (2) of [Lugano II] must be interpreted as meaning that a jurisdiction clause is validly concluded where it is contained in the general terms and conditions to which the contract concluded in writing refers by the inclusion of a hypertext link to a website, access to which allows those general terms and conditions to be viewed, downloaded and printed prior to that contract being signed, without the party against whom that clause operates having been formally asked to accept those general terms and conditions by ticking a box on that website”.

Source: https://curia.europa.eu/juris/document/document.jsf?docid=268966&mode=req&pageIndex=1&dir=&occ=first&part=1&text=&doclang=EN&cid=87129

WertInvest Hotelbetrieb
Environnement et consommateurs
Avocat général Collins : une évaluation des incidences sur l’environnement peut être requise lorsqu’un projet d’aménagement urbain est envisagé sur un site inscrit au patrimoine mondial de l’Unesco