Flux européens

Fenix International
Fiscalité TVA
Plateformes en ligne et collecte de la TVA : le Conseil n’a pas outrepassé les limites de son pouvoir d’exécution en précisant que le gestionnaire d’une plateforme, telle que Only Fans, est présumé être le prestataire des services fournis

This post to flag my analysis of SAS Saloni France v SAS Nexity Logement, Tribunal de Commerce de Paris, 19ème chambre, 14 December 2022, over at Lexis Nexis arbitration. It is a rare application by a French court of first
instance, of the fairly recently introduced theory of unforeseeability (imprévision) in the context of the price spike in energy costs, transport and packaging as a result particularly of the Russian war in Ukraine.

Geert.

 

 

 

 

Harris ea v Environment Agency [2022] EWHC 2606 (Admin) I fear is another case I let slip on the blog. It is a judgment which discusses to right to an effective remedy following the earlier finding in Harris & Anor v Environment Agency [2022] EWHC 2264 (Admin) that the Agency’s allowing water extraction in three Sites of Special Scientific Interest was in breach of retained EU law, namely Article 6(2) Habitats Directive (measures designed to prevent the deterioration of habitats and species) and of the equally retained EU law precautionary principle.

The issue at stake in current case is the appropriate remedy, a classic challenge in judicial review cases in instances where the authorities have been found in breach of an obligation of effort rather than one of result. Those of us involved in climate litigation will appreciate the difficulty.

The Agency suggests the finding that there was a breach is enough of a remedy. Claimants disagree, seeking an order in the nature of [2018] EWHC 315 (Admin) which the Agency says must be distinguished on the grounds that the regulatory requirements relevant to that order, they argue, is more prescriptive.

Johnson J holds [7] that ‘the claimants have not just a presumptive common law right to a remedy, but also a statutory right’, given Article 19(1) TEU’s right to an effective remedy. A mandatory order that the Environment Agency must formulate a plan is issued [10], a plan which must be produced within 8 weeks [13]; that deadline has passed at the time of posting], disclose that plan to claimants [17] and with the precise formulation of the order [26] being

“The defendant shall, by 4pm on 7 December 2022, provide to the claimants details of the measures it intends to take to comply with its duties under Article 6(2) of the Habitats Directive (“Art 6(2)”) in respect of The Broads Special Area of Conservation. The details shall include an indication as to the time by which the defendant intends to have completed those measures. It shall also include, so far as practicable, the scientific and technical basis for the defendant’s assessment of the measures that are necessary to comply with Art 6(2).”

More on the nature of the kind of orders judges may give to authorities is currently discussed in a wide range of environmental law, including climate law litigation. It is an interesting application of the nature of judicial review and trias politica..

Geert.

Monash University, Law 5478 Strategic and Public Interest Litigation.

Remedy under common law when public authority has been found to have acted illegally
A6(2) EU Habitats law, water extraction
Agency ordered to produce plan & its legal, science basis, within 8 weeks

Harris ea v Environment Agency [2022] EWHC 2606 (Admin)https://t.co/6OKSKh7caJ pic.twitter.com/SKjEnpnQF0

— Geert Van Calster (@GAVClaw) October 19, 2022

A bit of a late follow-up to a 1 November Tweet but hey ho, I have been a tad busy and it is nevertheless good to still have the post up.

East-West Logistics Llp v Melars Group Ltd [2022] EWCA Civ 1419 is a good reminder of the importance of ascertainability by third parties for determination of a corporation’s Centre of Main Interests – COMI. The appeal against Miles J’s finding in [2021] EWHC 1523 (Ch) was rejected and Malta as place of COMI confirmed.

The Company was incorporated in the British Virgin Islands -BVI and entered into a charterparty with the Petitioner in December 2011 for a shipment to Turkmenistan. The address of the Company in the charterparty was stated to be in the BVI. The charterparty contained a clause providing for disputes to be resolved by arbitration in London under English law. Following a disputed shipment, the Petitioner tried to but failed to launch LCIA arbitration (the tribunal holding it did not have jurisdiction), followed by successful proceedings in BVI resulting in a judgment in default against the company, which the latter later managed to have set aside. Without notifying the Petitioner, the Company had in the meantime moved its place of incorporation, and hence its registered office, to Malta.

On 19 July 2016 the Petitioner then presented a winding up petition in London based upon its BVI judgment debt. The Petition alleged that COMI of the Company was in the UK, citing pro UK as COMI [11] (prima facie rather flimsily) that i) the six commercial contracts concluded by the Company of which the Petitioner was aware (including its own charterparty) were in the English language, were governed by English law and had arbitration clauses providing for arbitration in London; and ii) the Company participated in the LCIA arbitration in London and was represented by a London firm (or firms) of solicitors. Against Malta as COMI, it suggested i) the Company did not actually have an office there, its registered office address being that of a Cypriot law firm providing company administration services; ii) the Company did not have any employees or conduct any business in Malta; iii) the Company’s sole director was a nominee who was a Swiss national, resident in South Africa; and iv) the Company’s sole shareholder and principals were Russian.

Baister J made a winding-up order, citing [20] the forum shopping background and the corporation not much being involved in physical, rather virtual trade, deciding ‘ by a narrow margin and with misgivings, that on balance the greater use of English law for contracts, the greater use of London as a seat of arbitration, the actual recourse to or forced involvement in legal proceedings here and the consequential use of English lawyers makes the UK, on the balance of probabilities, the main centre of those interests. The company’s affairs seem to have been conducted in this country more than in Switzerland [SW plays a role because of a Swiss national, GAVC],  certainly as far as contractual and litigation interests were concerned, although it is, I accept, hard to be precise.”

That judgment was overruled on appeal, with Miles J concluding ‘that Judge Baister had erred in principle in three ways in his approach to the determination of the Company’s COMI. The first was in relation to the importance of the presumption in Article 3(1), the second was in relation to the concept of ascertainability, and the third was in failing to distinguish between matters of administration of the company’s interests and matters going to the operation of its business.’

Upon further appeal, Lewison LJ agreed with Miles J. [46] ‘lack of evidence that the debtor actually carries out any activities at the place of its registered office does not allow the court to ignore or disregard the legal presumption under Article 3(1).’

He is right! [47] ‘The court must be alert to detect fraudulent or abusive forum shopping by purported changes of COMI by a debtor’ however ‘the question in such cases is whether the move of COMI is real or illusory. It is not whether the move of the debtor’s registered office is real or illusory.’

[63] “the court should not invent a hypothetical “typical” third party creditor with “average” or “normal” characteristics, and form a view on what might (or might not) have been apparent to that creditor in the course of a notional dealing by him with the company. Neither the EU Regulation nor the jurisprudence of the CJEU refer to the concept of a “typical” creditor, but refer instead, and more generically, to “creditors” or “third parties”.”

[80] “none of the factors relied upon by the Petitioner were, individually or collectively, sufficient to establish that the Company actually conducted the administration of its interests on a regular basis in England (or any other particular location) so as to displace the presumption in favour of Malta under Article 3(1).”

One’s intuition in a case like this may be not to have much sympathy for a corporation engaging in COMI /seat forum shopping. However that intuition is not reflected in the Regulation’s presumptive treatment of incorporation as COMI.

Geert.

EU Private International Law, 3rd ed. 2021, Heading 5.6.1.

Centre of main interests determination under EU #Insolvency Regulation 2015/848
Unsuccessful appeal against confirmation of COMI as Malta, not E&W
Discussion of 'third party ascertainability'

East-West Logistics Llp v Melars Group Ltd [2022] EWCA Civ 1419https://t.co/CZhTRhtybC

— Geert Van Calster (@GAVClaw) November 1, 2022

I am hoping for a few gaps in yet again a mad diary this week, to catch up on quite a few developments I tweeted on earlier. First up is judgment in C‑147/21 Comité interprofessionnel des huiles essentielles françaises (CIHEF) et al v Ministre de la Transition écologique ea. The case concerns the possibility for Member States to adopt restrictive measures on commercial and advertising practices for biocidal products. It is a good illustration of the mechanism of precaution or pre-emption in EU law, and of the classic application of Article 36 TFEU’s exceptions to free movement of goods.

Applicants contest the French restriction of commercial practices such as discounts and rebates, as well as advertising, for two specific biocides categories: rodenticides and insecticides. The secondary law benchmark is Biocidal Products Regulation 528/2012.

As for the first category, commercial practices such as discounts, price reductions, rebates, the differentiation of general and specific sales conditions, the gift of free units or any equivalent practices, the Court, also seeking report in the AG’s Opinion, held [33] that the Regulation’s definitions of ‘making available on the market’ and ‘use’ of biocidal products are as such sufficiently broad to cover commercial practices linked to the sale of those products, however [34] that the Regulation does not seek to harmonise the rules relating to commercial practices linked to the sale of biocidal products.

That leaves the classic CJEU Case 8/74 Dassonville test (all measures of a Member State which are capable of hindering, directly or indirectly, actually or potentially, trade within the European Union are to be considered as measures having an effect equivalent to quantitative restrictions within the meaning of that provision), tempered by Joined cases C-267/91 and C-268/91 Keck et Mithouard : there is no direct or indirect hindrance, actually or potentially, of trade between Member States, in the event of:

• the application to products from other Member States of national provisions restricting or prohibiting certain selling arrangements [[39] of current judgment the CJEU confirms this is the case here]
• on condition that those provisions apply to all relevant traders operating within the national territory [41 held to to be the case here] and that they affect in the same manner, in law and in fact, the marketing of domestic products and of those from other Member States [[42] held to have to be judged by the national court but 43 ff strongly suggested to be the case here (i.e. there not being distinctive affectation of domestic cq imported products)].

Should the national court decide that (unlike what the CJEU indicates) the French measures are not selling arrangements, carved out from Article 34’s scope altogether, the CJEU [48] ff holds that the French measures most likely  (the final arbiter will be the French judge) enjoy the protection of both Article 36 TFEU’s health and life of humans exception, and the Court’s Cassis de Dijon-inserted ‘overriding reason in the public interest’ aka the rule of reason aka the mandatory requirements exception: strong indications are that the measures are justified by objectives of protection of the health and life of humans and of the environment, that they are suitable for securing the attainment of those objectives and that they do not not go beyond what is necessary in order to attain them. The referring court will have to confirm.

As for the French obligations relating to advertisements addressed to professionals (which includes in particular adding a specific statement), here the Court holds [60] ff that the Regulation does exhaustively harmonise the  wording of statements on the risks of using of biocidal products which may appear in advertisements for those products. This precludes the relevant French rules.

[68] ff however the French prohibition of advertising addressed to the general public, is held not to have been regulated by the Regulation, with the Court coming to the same conclusions as above, viz Article 34’s selling arrangements carve-out and, subsidiarily, Article 36 TFEU’s and the rule of reason exceptions.

A final check therefore is to be done by the referring court however it seems most likely the French restrictions will be upheld.

Geert.

EU Environmental Law, 2017, Chapter 17, p.308 ff.

The Biocides judgment is now here https://t.co/shbrzHqfzA, #neonicotinoids here https://t.co/o6zK33JHHe https://t.co/tjwfrI7Nil

— Geert Van Calster (@GAVClaw) January 20, 2023

Bank M. (Conséquences de l’annulation du contrat)
Rapprochement des législations
Avocat général Collins : à la suite de l’annulation d’un contrat de prêt hypothécaire en raison de la présence de clauses abusives, les consommateurs peuvent faire valoir à l’encontre des banques des prétentions allant au-delà du remboursement de la prestation monétaire ; les banques non

China Chamber of Commerce for Import and Export of Machinery and Electronic Products e.a. / Commission
Relations extérieures
Contestation antidumping : l’avocate générale Medina suggère à la Cour de reconnaître la qualité pour agir de la China Chamber of Commerce en tant qu’association représentative

Asociaţia "Forumul Judecătorilor din România"
Principes du droit communautaire
Selon l’avocat général Emiliou, une procédure de promotion des juges fondée sur une évaluation de leur travail et de leur conduite par une commission composée du président et de juges de la cour de rang supérieur compétente est compatible avec le droit de l’Union

Chief Appeals Officer e.a.
Principes du droit communautaire
Avocate générale Ćapeta : la mère d’un travailleur mobile de l’Union peut demander une prestation sociale sans que cette demande remette en question son droit de séjour

Lufthansa Technik AERO Alzey
Espace de liberté, sécurité et justice
La Cour précise la notion de « circonstances exceptionnelles » permettant à l’autorité judiciaire compétente de suspendre l’exécution d’une décision certifiée en tant que titre exécutoire européen

Rzecznik Praw Dziecka e.a. (Suspension de la décision de retour)
Le droit de l’Union s’oppose à ce que des autorités nationales puissent obtenir sans justification la suspension d’une décision définitive de retour d’un enfant

HYA e.a. (Motivation des autorisations des écoutes téléphoniques)
Rapprochement des législations
Une décision autorisant une mise sur écoute téléphonique peut ne pas contenir de motifs individualisés

Tráficos Manuel Ferrer
Concurrence
Actions en dommages et intérêts pour infractions au droit de la concurrence : le droit de l’Union en la matière ne s’oppose pas à une règle nationale selon laquelle, en cas d’accueil partiel de la demande, les dépens demeurent à la charge de chaque partie, qui supporte alors la moitié des frais communs

Commission / Italie
Droit institutionnel
La Cour confirme l’illégalité de deux avis de concours EPSO limitant le choix de la seconde langue aux langues anglaise, française ou allemande

Belaeronavigatsia / Conseil
Relations extérieures
Le Tribunal confirme les mesures restrictives adoptées à l’encontre de l’entreprise étatique gérant l’espace aérien en Biélorussie

Austrian Power Grid e.a. / ACER
Énergie
Le Tribunal confirme les pouvoirs renforcés de l’Agence de l’Union européenne pour la coopération des régulateurs de l’énergie (ACER) pour prendre des décisions individuelles sur des questions transfrontalières

I am mopping up draft posts so forgive me if some of them are a touch late compared to my original report on them on Twitter.  Asian Offshore Services v Self Elevating Platform ECLI:NL:RBROT:2023:34 of the Court of First Instance at Rotterdam is an interesting illustration of the positive conflicts rule of Article 4 juncto Article 63 Brussels Ia.

Article 4’s domicile rule is supplemented by Article 63’s definition of domicile for legal persons:

Article 63:

1.   For the purposes of this Regulation, a company or other legal person or association of natural or legal persons is domiciled at the place where it has its: statutory seat [Dutch: statutaire zetel]; central administration; [Dutch: hoofdbestuur] or principal place of business [Dutch: hoofdvestiging].

2.   For the purposes of Ireland, Cyprus and the United Kingdom, ‘statutory seat’ means the registered office or, where there is no such office anywhere, the place of incorporation or, where there is no such place anywhere, the place under the law of which the formation took place.

3.   In order to determine whether a trust is domiciled in the Member State whose courts are seised of the matter, the court shall apply its rules of private international law.

A63 may lead to so-called positive conflicts: more than one court considering itself to be the domicile of the defendant. This is interesting nota bene in the case of business and human rights cases where claimants may want to forum shop and sue in the EU, such as in Anglo American.

In the case at issue, the court first of all [4.2] dismisses the parties’ awkward consensus [4.1] that neither Brussels Ia, nor any international Treaty determines jurisdiction. Clearly Brussels Ia does apply (claimant is domiciled at Kuala Lumpur; defendant registered in Curaçao) and the Court applies it proprio motu.

The court then points to the statutory seat in Curaçao, and [4.9] notes SEP’s lack of contestation that Sliedrecht is its ‘fixed place of business’ as testified by an extract from the local commercial register. Now I a may be a stickler for language here but a fixed place of business is not the same as the principal place of business (which implies main business activities). It is the latter which the Regulation requires.

Geert.

EU Private International Law, 3rd ed. 2021, 2.131 ff.

First instance Rotterdam
Held Netherlands have A4 Brussels Ia 'domicile' jurisdiction because on the facts, 'principal place of business' of Curaçao incorporated corporation is in The Netherlands

ASIAN OFFSHORE SERVICES v SELF ELEVATING PLATFORM N.V.https://t.co/Luf7qg1tnR

— Geert Van Calster (@GAVClaw) January 17, 2023

UniCredit Bank Austria
Rapprochement des législations
Le droit du consommateur à bénéficier, en cas de remboursement anticipé de son crédit immobilier, d’une réduction du coût total du crédit n’inclut pas les frais indépendants de la durée du contrat

Carpatair / Commission
Aide d'État
Le Tribunal annule la décision de la Commission européenne validant les aides roumaines à l’aéroport international de Timișoara en faveur de Wizz Air

Aquind e.a. / Commission
Marché intérieur de l’énergie et liste des projets d’intérêts commun de l’Union : le Tribunal rejette le recours du groupe Aquind