Flux européens

Primera Air Scandinavia
Espace de liberté, sécurité et justice
Un passager ayant réservé son vol par l'intermédiaire d'une agence de voyages peut introduire contre le transporteur aérien un recours en indemnisation, pour un retard de vol important, devant le tribunal du lieu de départ du vol

Kreissparkasse Saarlouis
Environnement et consommateurs
Les contrats de crédit aux consommateurs doivent mentionner de manière claire et concise les modalités de computation du délai de rétractation

Miasto Łowicz
Droit institutionnel
La Cour déclare irrecevables deux demandes de décision préjudicielle concernant les mesures polonaises de 2017 établissant un régime de procédure disciplinaire à l’égard des juges

In Bournemouth, Christchurch and Poole Council v KC et al [2020] EWFC 20, Dancey J at  62 ff is the first UK judge to my knowledge to discuss the implications of the UK’s separation from the EU’s civil procedure /justice and home affairs agenda, particularly in the transition period. It includes a discussion of the UK’s Brexit (EU Exit) Regulations 2019/2003, reg 3, and the European Commission notice on transition provisions.

The care proceedings concern W, a girl aged 9, nearly 10. W’s parents, who were married, are Polish nationals and W was born there. Following the separation of the parents in Poland in April 2016, contested contact proceedings there resulted in an order providing that W live with the mother with contact to the father. The father’s parental responsibility was limited to decisions about medical treatment and education. Following the breakdown of the father’s contact with W, the mother brought her to the UK in June 2018 where they have remained since. That was done without the father’s agreement, although he was aware the mother planned to relocate and acquiesced once the move had taken place. The mother did not tell the father of her and W’s location within the UK.

The legal framework therefore is Brussels IIa, Regulation 2201/2003. Dancey J at 63 concedes that by reg 8 of 2019/2003, dealing with saving/transitional provisions, the UK’s revocation from Brussels IIa does not apply to proceedings before a court in a Member State seised before 31 December 2020. However he then refers to the EC Notice to Stakeholders: Withdrawal of the United Kingdom and EU Rules in the Field of Civil Justice and Private International Law: 18/1/2019, and suggests it means that EU rules on recognition and enforcement will not apply to a UK judgment, even if the judgment was given, or enforcement proceedings started, before 1 January 2021 unless the judgment has been exequatured (declared enforceable by the courts of the Member State where recognition or enforcement is required) before 1 January 2021. Support for his opinion is found I suspect mostly in Heading 2.2 of that Notice.

At 66 Dancey J suggests in practice the consequence should not be too dramatic in the case at issue for ‘one or other of the parents should apply promptly in Poland for a declaration recognising this judgment and the order that will follow (exequaturing the judgment).’ That absence of real delay in the case at issue may well be true (it is confirmed by a letter from the Polish consulate) however the  implications are already clear and no surprise. Enforcement of UK judgments will be a lot less smooth post Brexit.

Geert.

Bru IIA Regulation
Incl 1st (?)) application of Jurisdiction, Judgments (Family) part of the #Brexit (EU Exit) Regulations 2019/2003, reg 3.
EC notice on transition provisions
Exequatur needed even if judgment was given, or enforcement proceedings started, before 1 January 2021. https://t.co/Ve8MKYzMdd

— Geert Van Calster (@GAVClaw) March 20, 2020

Thank you Ennio Piovesani for signalling and reviewing one of the first conflicts-specific developments on the Corona /Covid 19 landscape.

In an effort to safeguard the economic position of the travel sector, the Italian Government by decree has essentially frozen the travel sector’s statutory duty to reimburse travellers whose package travel has become impossible due to the pandemic. Ennio reports that the decree refers specifically to Article 9 Rome I’s overriding mandatory law provisions (earlier applied in Unamar), (in his translation): ‘“The provisions of the present article constitute overriding mandatory provisions within the meaning of Article 17 of Law of 31 May 1995, No. 218 [“Italian PIL Act”] [5, 6] and of Article 9 of Regulation (EU) No. 593/2008 of the European Parliament and of the Council, of 17 June 2008 [“Rome 1 Regulation”]”.

Ennio signals and important issue: how much leeway may be given to Member States to push their own definition of the concept of ‘lois de police’ /overriding mandatory law in light of the CJEU definition in Joined Cases C-369/96 and C-376/96 Arblade. In Brussels Ia of course the CJEU has pushed the concept of ordre public in a limited direction. Lois de police however are different from ordre public and Rome I is not Brussels Ia, and I am therefore not so pessimistic as Ennio when it comes to leaving a lot of discretion to Member States. What to me looks a touch more problematic is the relation with the package travel Directive 2015/2302 which applies to many of the travel arrangements concerned and which is the source of many of the protections for travellers.

No doubt to be continued.

Geert.

(Handbook of) European Private International Law, 2nd ed. 2016, Chapter 3, Heading 3.2.8.3.

 

Entrée en fonctions d’un nouvel avocat général à la Cour de justice

A quick note on Kenyon v Secretary of State for Housing Communities & Local Government et al [2020] EWCA Civ 302 in which Coulson J checks planning consent ia against the requirements of the EU Environmental Impact Assessment- EIA Directive 2011/92. Of particular interest is his application of the Wednesbury judicial review test.

At 12: ‘A decision as to whether a proposed development is or is not likely to have significant effects on the environment can only be struck down on Wednesbury grounds’. ‘Wednesbury unreasonableness‘ is akin to CJEU standard of judicial review. Diplock J formulate it later as an administrative decision being annulled only if it was ‘So outrageous in its defiance of logic or accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it.’ The grounds in Wednesbury are very akin to the CJEU grounds: annulment will follow only if (well summarised by Wiki):

• in making the decision, the defendant took into account factors that ought not to have been taken into account, or
• the defendant failed to take into account factors that ought to have been taken into account, or
• the decision was so unreasonable that no reasonable authority would ever consider imposing it.

Applied at issue at 63 ff to the precautionary principle, applicant’s argument that ‘inevitable air pollution caused by the development’ must be taken into account, fails. at 67: ‘In circumstances where there was no doubt in the mind of the relevant decision-maker, there is no room for the precautionary principle to operate.’ (Clearly and in applying all Wednesbury principles, that absence of doubt must have followed from the right information having been taken into account).

Geert.

EU environmental law (with Leonie Reins), Edward Elgar, 2018, p.28 ff.

 

Environmental Impact Assessment #EIA, consideration ia of Directive 2011/92.
Argument based on the precautionary principle fails: 'inevitable air pollution' caused by a planned development does not suffice to trigger the principle.
(Wednesbury judicial review principles). https://t.co/jCa8r4FLJA

— Geert Van Calster (@GAVClaw) March 5, 2020

Sánchez Ruiz
SOPO
Les États membres ne peuvent exclure de la notion de « relations de travail à durée déterminée successives » la situation d’un travailleur occupant de manière pérenne, en vertu de plusieurs nominations, un poste de remplacement en l’absence de procédure de concours, sa relation de travail ayant été ainsi implicitement prorogée d’année en année

"AGRO IN 2001"
Espace de liberté, sécurité et justice
Le droit de l’Union n’empêche pas les États membres de prévoir des procédures civiles de confiscation indépendamment du constat d’une infraction pénale

In Manitou v J.C. Bamford Excavators, (defendant is better known as ‘JCB’ which in England is an eponym for ‘digger’ or excavator) the Paris Court of Appeal held that French Courts have jurisdiction in an interesting tale of patent insults. JCB (England incorporated) had obtained a French injunction against Manitou (domiciled at France) obliging it to halt production of one of its products possibly in violation of a JCB patent. On the eve of an important trade fair taking place in France, JCB boasted about the injunction in a Twitter, Linked-in and website post. Manitou argue the post was insulting and an act of unfair competition.

Manitou claim jurisdiction on the basis of A7(2) BIa, special jurisdiction for tort, per CJEU C-618/15 Concurrences /Samsumg /Amazon, which I reviewed here. It refers to all sites on which the news was posted being accessible in France (Pinckney would have been strong authority here); to the post discussing a French judgment which is only aimed at and enforceable in France; and that its publication was timed to coincide with the aforementioned French fair. JCB on the other hand argue mere accessibility does not suffice and that the sites did not target readers in France.

The Court refers both to Shevill and to Concurrences; decides that the very fact that the site was published in English does not insulate it from French jurisdiction (seeing also that plenty of potential clients looking to buy from Manitou at the time would have been in France for the fair); and that the publication clearly would have affected the brand’s reputation in France and also its sales there. Jurisdiction therefore established.

Geert.

(Handbook of) European private international law, 2nd ed. 2016, Chapter 2, Heading 2.2.11.2

Unfair competition, publication by UK defendant of judgment concerning #patent infringement
Jurisdiction, Article 7(2) Brussels Ia.
Paris CA upholds FR jurisdiction citing Shevill, Concurrences (on which https://t.co/Ibsofl7Jsl) https://t.co/WD61WwHtwv

— Geert Van Calster (@GAVClaw) March 5, 2020

Following the ratification of Qatar last week, on 12 March 2020, the United Nations Convention on International Settlement Agreements Resulting from Mediation will enter in force on 12 September 2020: that was quick!

Source: here

 

The Council on General Affairs and Policy of the Hague Conference met from 3 to 6 March 2020. Its conclusions and decisions are now available.

Key points:
“The projects on normative work include two further meetings of the Experts’ Group on Jurisdiction before CGAP 2021, the continuation of the Parentage / Surrogacy Project and the Tourists and Visitors Project, further work on the draft Practical Guide on cross-border recognition and enforcement of agreements reached in the course of family matters involving children and, subject to available resources, some exploratory work of the intersection of private international law and intellectual property and the monitoring of developments with respect to the private international law implications of distributed ledger technology (DLT).

In relation to post-Convention services, CGAP noted, amongst others, the approval of the Guide to Good Practice on Article 13(1)(b) under the 1980 Child Abduction Convention and the Guide to Good Practice on the Use of Video-Link under the 1970 Evidence Convention. CGAP also approved the holding of a first Special Commission on the 2007 Child Support Convention and its Protocol. In addition, CGAP invited another meeting of the Working Group on Preventing and Addressing Illicit Practices under the 1993 Adoption Convention, and an Experts’ Group to explore whether broader use of new technologies, including DLT, may further enhance the e-APP, in particular in relation to e-Registers”.

Source: here and there

For the Guide to Good Practice under the HCCH Convention of 25 October 1980 on the Civil Aspects of International Child Abduction – Part VI – Article 13(1)(b), see here

Last week, on 11 March 2020, the Court of Justice delivered its judgment in case C‑511/17 (Györgyné Lintner v UniCredit Bank Hungary Zrt.), which is about Directive 93/13 on unfair terms in consumer contracts:

“1. Article 6(1) of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts must be interpreted as meaning that a national court, hearing an action brought by a consumer seeking to establish the unfair nature of certain terms in a contract that that consumer concluded with a professional, is not required to examine of its own motion and individually all the other contractual terms, which were not challenged by that consumer, in order to ascertain whether they can be considered unfair, but must examine only those terms which are connected to the subject matter of the dispute, as delimited by the parties, where that court has available to it the legal and factual elements necessary for that task, as supplemented, where necessary, by measures of inquiry.

2. Article 4(1) and Article 6(1) of Directive 93/13 must be interpreted as meaning that, while all the other terms of the contract concluded between a professional and that consumer should be taken into consideration in order to assess whether the contractual term forming the basis of a consumer’s claim is unfair, taking such terms into account does not entail, as such, an obligation on the national court hearing the case to examine of its own motion whether all those terms are unfair”.

Source: here

Many thanks 2TG for initially flagging the judgment, and for Maura McIntosh and colleagues not just for further reviewing it but also for sending me copy: for the case has not yet appeared on the usual sites.

In Pandya v Intersalonika [2020] EWHC 273 (QB), Tipples J held that proceedings were time-barred in accordance with Greek law as the lex causae, where the claim form was issued in the English courts before the expiry of the applicable Greek limitation period, but was not served until after that period had expired.

The claim arises out of a road traffic accident that happened in Kos, Greece on 29 July 2012. The claimant is a UK national and was on holiday in Kos with her family when she was struck by a motorcycle as she was crossing the road. The claimant suffered a severe traumatic brain injury and was then aged fifteen. Defendant is the Greek-registered insurance company which provided insurance to the motorcyclist or the motorcycle that he was riding.

That claimant is entitled to sue the insurer in England is not of course, contrary to Tipples J passing reference, a result of Rome II but rather of Brussels IA. Jurisdiction however at any rate was not under discussion.

Defendant then relies on A15(h) Rome II to argue a time bar under Greek law, the lex locus damni: service of the claim is a rule of Greek law in relation to limitation and a claim has to be issued and served to interrupt the limitation period. This means that the requirement of service cannot be severed, or downgraded, to a step which is simply governed by the rules of civil procedure under English law. Claimant by contrast argues that service of the claim is a point of pure procedure, which falls squarely within Article 1(3) and is governed by the rules of civil procedure under English law.

At 25 ff Tipples J discusses the issue (I highlight the most relevant arguments)

• starting with the principle of autonomous interpretation;
• further, a need for wide interpretation of A15 which she derives from its non-exhaustive character. I do not agree that non-exhaustive listings necessarily equate broad interpretations;
• thirdly the need, by contrast, to interpret A1(3) narrowly ‘because it is an exception’ to the general rule of lex locus damni in A4. This too I disagree with: A1(3) states it ‘it shall not apply to evidence and procedure, without prejudice to Articles 21 and 22’ (which concern formal validity and burden of proof). In my view A1(3) like A1(2) defines the scope of application, like A1(2). It is listed separately from the issues in A1(2) for unlike those issues, part of the excluded subject-matter is partially brought back into the scope of application. If anything therefore needs to be interpreted restrictively, it is the partial cover of evidence and procedure.  Seemingly between parties however this was not disputed.
• Further support is found in Dicey & Morris 15th ed., which refers to Wall v Mutuelle de Poitiers a case which discusses the issues somewhat, yet if anything more in support of English law applying to the discussion in Pandya rather than the other way around. (A reference further on in Andrew Dickinson’s Rome II Volume with OUP in my mind, too, further underlines the opaqueness of the A1 /A15 distinction and does not clearly lend support pro the lex causae argument).
• Fifth, predictability and certainty are cited in support however how these gazump exclusions from the scope of application is not clear to me.
• Finally PJSC Tatneft v Bogolyubov is referred to but dismissed as irrelevant (which surprises me).

Held: the claim was time-barred and therefore dismissed.

I would suggest there is plenty of scope for appeal here.

Geert.

(Handbook of) EU Private International Law, 2nd ed. 2016, Chapter 3.

Covid-19 : la Cour de justice de l’Union européenne prend ses dispositions afin d’assurer la continuité dans le traitement des affaires et de contribuer à la lutte contre la propagation de l’épidémie

Finnair
Transport
Un passager aérien indemnisé pour l’annulation d’un vol et ayant accepté de voyager sur un autre vol a droit à une indemnisation en raison du retard du vol de réacheminement

Valencia Club de Fútbol / Commission
Aide d'État
Le Tribunal annule la décision de la Commission relative aux mesures d’aide mises en œuvre en faveur des clubs de football espagnols Valencia CF et Elche CF

Commission / Italie (Aides illégales au secteur hôtelier en Sardaigne)
Aide d'État
L’Italie est condamnée à des sanctions pécuniaires pour ne pas avoir récupéré des aides illégalement octroyées au secteur hôtelier en Sardaigne

Thank you Matthias Lehmann for flagging and reviewing the Rotterdam Court’s judgment late in January on applicable law in the Petrobas case. I had earlier reviewed the jurisdictional issues, particularly the application of Brussels Ia’s Article 33-34.

The case relates to a Brazilian criminal investigation into alleged bribery schemes within Petrobras, which took place between 2004 and 2014. The court first, and of less interest for the blog, deals with a representation issue, holding that Portuguese speakers cannot be represented in the class, for the Portuguese version of the relevant dispute settlement provisions, unlike the English translation, was not faulty.

Turning then to applicable law at 5.39 ff. Events occurring on or after 12 January 2009 are subject to the Rome II Regulation. For those before that date, Dutch residual PIL applies which the Court held make Brazilian law lex causae as lex loci delicti commissi: for that is where the alleged fraud, bribery and witholding of information happened.

For the events which are covered by Rome II, the court does not wait for the CJEU finding in VEB v BP and squarely takes inspiration from the CJEU case-law on purely financial damage and jurisdiction: Kronhofer, Kolassa, Universal Music. The court notes that the CJEU in these cases emphasised a more than passing or incidental contact with a State (such as: merely the presence of a bank account) as being required to establish jurisdiction as locus damni. At 5.47 it rejects the place of the investor’s account as relevant (for this may change rapidly and frequently over time and may also be easily manipulated) and it identifies the place of the market where the financial instruments are listed and traded as being such a place with a particular connection to the case: it is the place where the value of the instruments is impacted and manifests itself. It is also a place that meets with the requirements of predictability and legal certainty: neither buyer nor seller will be surprised that that location should provide lex causae.

Conclusion therefore is one of Mozaik: Brasil, Argentina, Germany, Luxembourg are lex causae as indeed may be other places where Petrobas financial instruments are listed. (At 5.49: Article 4(2)’s joint domicile exception may make Dutch law the lex causae depending on who sues whom).

Geert.

(Handbook of) EU private international law, 2nd ed.2016, Chapter 4, Heading 4.4.

 

The Law Applicable to Investor Claims: New Developments from the Rechtbank Rotterdam’s Judgment in Petrobas https://t.co/cuQjWrrOe0

— EAPIL – Eur. Assoc. of Private International Law (@eapilorg) February 24, 2020

 

 

 

Lintner
Environnement et consommateurs
Un juge devant lequel un consommateur fait valoir que certaines clauses contractuelles sont abusives est tenu de vérifier de sa propre initiative d’autres clauses du contrat pour autant qu’elles soient liées à l’objet du litige dont il est saisi