Hejduk: Copyright infringement and jurisdiction. The ECJ entertains much less than its AG.

I have reviewed the AG’s opinion in Hejduk here. The AG’s Opinion was exciting for it cited, even if only in a specific (IP; more specifically copyright) context, the difficulty in identifying locus damni. This, I suggested (realistically optimistic) flagged an obvious concern with the ECJ’s ruling in Bier. However the ECJ in its judgment, issued yesterday,  was not having any of this. It applied relevant precedent (all recalled in my earlier posting), did not at all entertain the AG’s concerns with the locus damni assessment, and held that in the event of an allegation of infringement of copyright and rights related to copyright guaranteed by the Member State of the court seised, that court has jurisdiction, on the basis of the place where the damage occurred, to hear an action for damages in respect of an infringement of those rights resulting from the placing of protected photographs online on a website accessible in its territorial jurisdiction. That court has jurisdiction only to rule on the damage caused in the Member State within which the court is situated.

Plaintiff’s difficulties were of no concern to the ECJ. No surprise perhaps given the Brussels I Regulation’s near-exclusive concern for the position of the defendant.

Geert.

 

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Paris suing FoxNews. (Birmingham joining optional). A dream essay for conflict of laws.

Exam time for conflict of laws students the world over, I imagine. Here’s a dream essay question. (Pick and mix a definite possibility).

‘It is widely reported that Paris (the town, not the socialite) may sue FoxNews. (For the sake of this essay assumed to be incorporated in Delaware, USA). A FoxNews analyst suggested the existence of ‘no go’ zones for non-muslims in the French capital.

1. How would you qualify Paris’ suit?

2. Where would you advise Paris to file the suit and why? What legal basis supports your litigation advice?

3. Assuming a French court would entertain the suit. What law would it apply to the case at hand?

4. Assuming a US (State) court would entertain the suit. What law would it apply to the case at hand?

5. Assume FoxNews countersues Paris.

5.1. Under the assumption of Q3, can the French Court join the countersuit to the original one?

5.2. Under the assumption of Q4, can the US Court join the countersuit to the original one?

5.3. Assume FoxNews is successful on its countersuit in a French court and wishes to have that judgment recognised and enforced against the bank account of Paris with BancoFrancais in London. Would an English court apply state immunity?

5.4 Assuming the same as under 5.3 however against assets held in Belgium. Would you come to the same conclusion?

5.5 Assume the same as under 5.3 however on a countersuit in a US court. Would FoxNews be succesful in enforcing the judgment in France?

6. Replace ‘Paris’ with ‘Birmingham (United Kingdom)’.  Revisit all of the questions above.

7. Add (rather than replace) a claim against FoxNews by Birmingham, UK. Could a French court assumed to have already upheld jurisdiction over Paris’ claim, join a Birmingham claim? On what legal basis? (if at all).’

I am keeping my exam powder dry on answers. Enjoy pondering.

Geert.

 

 

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My (conflicts) heart leaps when I behold Canyon v GDF Suez at the High Court.

It does. It really does. (Warning: The next sentence drops all pretext of this posting having poetic qualities). Canyon v GDF Suez is an absolutely perfect illustration of the challenges of the special jurisdictional rule of Article 5(1) of the Brussels I Regulation (now Article 7(1) Brussels Ibis). Starting with the very discussion of whether there was at all a contract between parties (a prima facie case of which is required to trigger Article 5; put differently: there need not even be solid proof of such contract existing), into the discussion of ‘goods’ v ‘services'; back to the at first sight very very puzzling fall-back provision of the third indent of the Article (‘(c) if subparagraph (b) does not apply then subparagraph (a) applies.”; finally, to the determination of ‘the place of performance of the obligation in question’.

Claimant (“Canyon”) is a Scottish company with its registered office in Aberdeen. Defendant applicant (“GDF”), a Dutch company, is a large owner and operator of oil and gas fields. GDF contracted with Cecon NL BV for the transportation and installation of pipelines. Cecon subcontracted to Canyon. Cecon fell behind in payments and GDF committed to paying relevant sub-contractors directly. Canyon relies on that alleged contract and on that contract allegedly having its place of performance in the UK.

Mackie J, no doubt with very able assistance by counsel, does an absolutely perfect job of taking the case through Article 5’s cascade, with impeccable reference to relevant ECJ case-law. Readers are best directed to the (concise) judgment itself. Many thanks to Ryan Deane for alerting me for the case – he has an excellent summary here.

Fantastic class material. Geert.

 

*****

Brussels Ibis Article 7(1)

(a) in matters relating to a contract, in the courts for the place of performance of the obligation in question;

(b) for the purpose of this provision and unless otherwise agreed, the place of performance of the obligation in question shall be:

- in the case of the sale of good, the place in a Member State where, under the contract, the goods were delivered or should have been delivered,

- in the case of the provision of services, the place in a Member State where, under the contract, the services were provided or should have been provided,

(c) if subparagraph (b) does not apply then subparagraph (a) applies.

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Court of Justice dismisses Vereniging Milieudefensie in air quality appeal. Aarhus not always the jawbreaker in judicial review.

In Joined Cases C‑401/12 P to C‑403/12 P, the issues at stake are the scope of judicial review (in the specific context of information requests), the EU’s long and difficult relationship with locus standi in environmental matters (again though within the perhaps more narrow context of access to information), the correct implementation of the Aarhus Convention, and the direct effect of said Convention. The judgment which the ECJ issued yesterday, underlines the need to review the direct effect of international law on a case-by-case and indeed article-by-article basis. While it is clear that the European Court of Justice overall has great sympathy for the binding impact of the Aarhus Convention (see i.a. my postings on the ECJ’s judgments in cases related to the cost of environmental litigation), in this case the relevant environmental organisations failed to convince the ECJ that Article 9 of the Convention has direct effect.

Article 9 Aarhus provides a review procedure in the event requests for information have been refused. (Readers may wish to consult Article 9 themselves to judge direct effect or lack of it themselves).

Regulation 1367/2006 implements the Aarhus Convention is-a-vis the EU Institutions. The case concerns Article 10 of that regulation, entitled ‘Request for internal review of administrative acts’, which provides in paragraph 1 thereof: ‘Any non-governmental organisation which meets the criteria set out in Article 11 is entitled to make a request for internal review to the Community institution or body that has adopted an administrative act under environmental law or, in case of an alleged administrative omission, should have adopted such an act.

Article 2(1)(g) of that Regulation defines ‘administrative act’ as meaning: ‘any measure of individual scope under environmental law, taken by a Community institution or body, and having legally binding and external effects’.

The Netherlands, in accordance with Article 22 of the ambient air quality Directive, Directive 2008/50, had notified the Commission that it had postponed the deadline for attaining the annual limit values for nitrogen dioxide in nine zones and that it was availing itself of a specific exemption from the obligation to apply the daily and annual limit values for particulate matter. The Commission accepted that postponement. Vereniging Milieudefensie and Stichting Stop Luchtverontreiniging Utrecht submitted a request to the Commission for internal review of that decision pursuant to aforementioned Article 10(1). The EC refused internal review.  The Commission considered the request inadmissible as the concerned acts in their view were not “administrative acts” as defined in Article 2(1)(g), not being, the EC argued , of ‘individual scope’ but rather of general application.

The General Court sided with applicants: because Article 10(1) of Regulation 1367/2006 limits the concept of “acts” that can be challenged by NGOs to “administrative acts” defined in Article 2(1)(g) of the Regulation as “measures of individual scope”, it argued that the Regulation is not compatible with Article 9(3) Aarhus. That judgment was appealed by many. The AG in current case also sided with the applicants. (Albeit following a different reasoning than the General court).

The ECJ itself disagreed. The provisions of an international agreement to which the European Union is a party can be relied on in support of an action for annulment of an act of secondary EU legislation or an exception based on the illegality of such an act only where, first, the nature and the broad logic of that agreement do not preclude it and, secondly, those provisions appear, as regards their content, to be unconditional and sufficiently precise. (Ex multi, the ECJ quoted its judgment in the Emissions Trading Scheme case, C-366/10).

Article 9(3) Aarhus, the Court held, does not contain any unconditional and sufficiently precise obligation capable of directly regulating the legal position of individuals and therefore does not meet those conditions: since only members of the public who ‘meet the criteria, if any, laid down in … national law’ are entitled to exercise the rights provided for in Article 9(3), that provision is subject, in its implementation or effects, to the adoption of a subsequent measure at the national level. The Aarhus Contracting Parties enjoy have a broad margin of discretion when defining the rules for the implementation of the ‘administrative or judicial procedures’ (at 59 in fine).

We were quite getting used to Aarhus being employed as a jawbreaker by the ECJ and national courts alike. I am not saying those days are over. However Vereniging Milieudefensie does show both that we cannot assume the Convention’s empowering effect for all of its provisions, and secondly, that at the level of the Convention itself, beefing up one or two articles would certainly assist its implementation. (That in itself, of course, may become more difficult the more frequent the ECJ and national courts both in the EU and elsewhere, employ Aarhus against unwilling State authorities).

Geert.

PS note that in Joined Cases C‑404/12 P and C‑405/12 P, Stichting Natuur en Milieu, the ECJ mirrors this judgment with respect to an internal review of a Regulation setting maximum residue levels for pesticides.

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Fahnenbrock: Bot AG opines on ‘civil and commercial’ viz bearers of Greek bonds and the collective action clause.

Within the context of the service of documents Regulation (1393/2007) but with no less relevance for the Jurisdiction Regulation, Bot AG opined on the qualification of an action by (German) holders of Greek bonds, against the Greek State, for the involuntary shave they took on those bonds. (A ‘collective action clause’ ( I am quoting Wiki here. And I have donated) allows a supermajority of bondholders to agree to a debt restructuring that is legally binding on all holders of the bond, including those who vote against the restructuring).

Bot AG revisits all the usual suspects in the discussion of ‘civil and commercial’ (see recently the ECJ itself in flyLAL). He suggests that in the case at issue, the Greek State, with its retroactive insertion of the collective action clause in the underlying contract, exercised acta uire imperii with direct intervention in the contract itself. Not an abstract, general regime (such as a change in overall tax) which only has an impact on said contract. Had the latter been the case, the change in say tax would of course have been acta iure imperii however that exercise of sovereign authority would have taken place at a distance from the contract and would have not impacted the ‘civil and commercial’ nature of the contractual dispute.

The Regulation therefore in the Advocate General’s view does not apply in the case at issue. All in all an interesting add-on to the ‘civil and commercial’ case-law.

Geert.

 

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‘Extraterritorial’ application of EU cosmetics Regulation’s ban on animal testing. High Court refers to the ECJ.

The EU’s cosmetics Regulation prohibits the placing on the market of products tested on laboratory animals. Application of the (criminally enforced) UK implementing regulations, raised questions on the precise scope of the Regulation’s provisions which are aimed at preventing the simple circumvention of the Regulation via production abroad. (Rosalind English has excellent review here). The case at issue concerns the question whether products may incorporate ingredients tested outside the EU, where this testing has been carried out with a view to meeting the product regulation requirements of third States.

The room for circumvention of the EU regime is obvious. The limits to the EU’s territorial reach likewise. International trade law is not at issue in the case however it is clear that the eventual ECJ ruling will feed into WTO et al discussions on so-called ‘non-product incorporated production processes and -methods’.

Geert.

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flyLAL-Lithuanian Airlines – ECJ holds on ‘civil and commercial’, ordre public and Article 22(2)’s exclusive jurisdictional rule all in the context of competition law.

flyLAL seeks compensation for damage resulting, first, from the abuse of a dominant position by Air Baltic on the market for flights from or to Vilnius Airport (Lithuania) and, second, from an anti-competitive agreement between the co-defendants. To that end, it applied for provisional and protective measures. The relevant Lithuanian court granted that application and issued an order for sequestration, on a provisional and protective basis, of the moveable and/or immoveable assets and property rights of Air Baltic and Starptautiskā Lidosta Rīga. A relevant Latvian court decided to recognise and enforce that judgment in Latvia, in so far as the recognition and enforcement related to the sequestration of the moveable and/or immoveable assets and property rights of  defendants. Application by flyLAL for a guarantee of enforcement of that judgment was rejected.

Defendants submit that the recognition and enforcement of the judgment are contrary to both the rules of public international law on immunity from jurisdiction and the brussels I Regulation. They argue that the present case does not fall within the scope of that regulation. Since the dispute relates to airport charges set by State rules, it does not, they submit, concern a civil or commercial matter within the meaning of that regulation.

On the scope of application issue (‘civil and commercial‘), the ECJ held with reference to previous case-law, that the provision of airport facilities in return for payment of a fee constitutes an economic activity. (This is different from the foundation judgment in Eurocontrol, which in turn was cross-referred in Sapir (to which the ECJ in current judgment refers repeatedly): Eurocontrol is a public body and the use of its services by airlines is compulsory and exclusive). The amount of shares held by government in the relevant airlines is irrelevant.

That the exclusive jurisdictional rule of Article 22(2) may be at issue (which might have led the court with whom enforcement is sought, to refuse such) was clearly a desperate attempt to rebuke jurisdiction. The national court should not have entertained it, let alone sent it to Luxemburg. (The Court replies courteously that ‘seeking legal redress for damage resulting from alleged infringements of European Union competition law, must (not) be regarded as constituting proceedings which have as their object the validity of the decisions of the organs of companies within the meaning of that provision.’) One assumes the flimsiest of arguments might have been that the board or a director would have had to approve the actions leading to the infringement.

Finally, according to Article 34(1), a judgment is not to be recognised if such recognition is manifestly contrary to public policy in the Member State in which recognition is sought. The referring court is unsure, first, as to the consequences to be drawn from the failure to state reasons for the methods of determining the amount of the sums concerned by the provisional and protective measures granted by the judgment in respect of which recognition and enforcement are sought and, second, as to the consequences linked to the amount of those sums.

With respect to the alleged failure to state reasons, the ECJ confirms (at 51 ff) that the observance of the right to a fair trial requires that all judgments be reasoned in order to enable the defendant to understand why judgment has been pronounced against him and to bring an appropriate and effective appeal against such a judgment (see ia Trade Agency). However that was not the case at issue: there is no lack of reasoning, since it is possible to follow the line of reasoning which led to the determination of the amount of the sums at issue. Parties concerned moreover had the opportunity to bring an action against such a decision and they exercised that option.  Therefore, the basic principles of a fair trial were respected and, accordingly, there are no grounds to consider that there has been a breach of public policy.

As regards the amount of the sums, the concept of ‘public policy’ within the meaning of Article 34(1)seeks to protect legal interests which are expressed through a rule of law, and not purely economic interests. The mere invocation of serious economic consequences does not constitute an infringement of the public policy of the Member State in which recognition is sought (at 58).

Once again the Court’s emphasis is on the exceptional nature of the ordre public exception.

Geert.

 

 

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