Dutch Supreme Court advisors suggest Court of Appeal judgment upholding State duty of care in climate litigation should stand.

The Dutch Court of Appeal‘s confirmation of the Court of First Instance at The Hague judgment in the climate litigation case, should stand. So advised two senior court advisors to the Supreme Court last week (they also announced a full English translation to be posted to the site today, Friday. Again quite a service from the Dutch judiciary!) As in the European Court of Justice, their opinion is not binding, but it is highly authoritative.

Others for whom this issue is their daily bread and butter no doubt will analyse the Opinion in great detail, discussing as it does issues of trias politica, direct effect of international law etc. Of particular note are their concluding remarks, where they emphasise the importance of the ECHR in the action, and (in trias politica context) the fact that the courts cannot and must not directly instruct the political class to legislate. All it can do is point out what is needed and where the Government fell short. That will leave the claimants with the task of pondering how to operationalise the judgment should the Supreme Court follow.

Geert.

 

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Saugmandsgaard ØE on Rome I’s lex societatis exception applied to trusts /’Treuhand’ in Verein für Konsumenteninformation v TVP Treuhand.

Advocate General Saugmandsgaard ØE in C-272/18 Verein für Konsumenteninformation v TVP Treuhand opined early September (I have been busy) that the Rome Convention’s and Rome I’s lex societatis exception does not apply to ‘Treuhand’ (a trust-like construction) contracts between investors and the corporation they entrust to manage investment in real estate companies located in Germany. The relevant choice of court rule follows the standard Rome I (cq Convention) rules.

At the time of adoption of the Rome Convention, the Giuliano Lagarde Report went into a bit more detail as to what is and is not excluded:

Confirming this exclusion, the Group stated that it affects all the complex acts (contractual administrative, registration) which are necessary to the creation of a company or firm and to the regulation of its internal organization and winding up, i. e. acts which fall within the scope of company law. On the other hand, acts or preliminary contracts whose sole purpose is to create obligations between interested parties (promoters) with a view to forming a company or firm are not covered by the exclusion.

The subject may be a body with or without legal personality, profit-making or non-profit-making. Having regard to the differences which exist, it may be that certain relationships will be regarded as within the scope of company law or might be treated as being governed by that law (for example, societe de droit civil nicht-rechtsfahiger Verein, partnership, Vennootschap onder firma, etc.) in some countries but not in others. The rule has been made flexible in order to take account of the diversity of national laws.

Examples of ‘internal organization’ are: the calling of meetings, the right to vote, the necessary quorum, the appointment of officers of the company or firm, etc. ‘Winding-up’ would cover either the termination of the company or firm as provided by its constitution or by operation of law, or its disappearance by merger or other similar process.

At the request of the German delegation the Group extended the subparagraph (e) exclusion to the personal liability of members and organs, and also to the legal capacity of companies or firms. On the other hand the Group did not adopt the proposal that mergers and groupings should also be expressly mentioned, most of the delegations being of the opinion that mergers and groupings were already covered by the present wording.

Particularly in KA Finanz, the Court could have done a lot to clarify the scope of the Convention, but did not. Current case however offered a lot less beef to that particular bone for only with a stretch in my view could the issue be considered to fall under the corporate exception. The argument made was that given that the contracts instruct the Treuhand to manage the companies, and that there was ‘alignment’ (‘imbrication’ is the word used in the French version of the Opinion at 36; no English version yet exists) between the contacts and the by-laws of the companies concerned: these were geared in part specifically to facilitate the investment in the companies by the Treuhand.

The AG points out that there is no European code for company law hence no possibility to use harmonised substantive law to help interpret private international law. He relies therefore on the general interpretative rules, including predictability, and sides in my view justifiably with the issue, in essence, being about contractual obligations: not life and death of companies. A link alone with questions relating to corporate law (at 53) is not enough.

Geert.

 

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Weco Projects ASP v Zea Marine Carier GmbH: Court-appointed surveyor’s powers in the light of arbitration.

Genova’s court ruling in Weco Projects ASP v Zea MArine Carier GmbH is remarkably similar to the Belo Horizonte (Cefetra et al v Ms ‘IDA’ Oetker Schiffahrtsgesellschaft MbH & Co KG et al) ruling at the Court of Rotterdam, which I reviewed here. Transport is of a yacht is the issue, sinking the event, and London arbitration the agreed dispute resolution. What powers do the courts in ordinary still have to order interim measures?

The court could have discussed the arbitration /Brussels Ia interface, as well as Article 35’s provisional measures. Instead, it mentions neither and relies entirely on an Italian Supreme Court precedent as Maurizio Dardani and Luca di Marco review excellently here (many thanks to Maurizio for forwarding me the case). An exciting, and missed opportunity to bring these issues into focus.

Geert.

(Handbook of) EU Private international law, 2nd ed. 2016, Chapter 2, Heading 2.2.15.

 

 

 

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Principles, principles everywhere. First test of the ‘energy solidarity’ principle in Poland v EC (Nordstream /Gazprom).

As I continue to dabble in research and talks about the innovation ‘principle’ (not in existence), and find myself in court (an attachment procedure following judgment in Israel) discussing the common law principle that ‘he who comes to equity must approach the court with clean hands’, the CJEU (General Court) yesterday in T-883/16 held Poland v EC a first test of the TFEU Energy title’s ‘principle of energy solidarity’. Note Poland’s litigant friends (Latvia; Lithuania), and the EC’s (Germany). This tells you something about energy security of supply on our Eastern borders.

Article 194 TFEU: ‘1. In the context of the establishment and functioning of the internal market and with regard for the need to preserve and improve the environment, Union policy on energy shall aim, in a spirit of solidarity between Member States, to:…’

The gas pipeline Ostseepipeline-Anbindungsleitung ﴾OPAL) is the terrestrial section to the west of the Nord Stream 1 gas pipeline. Its entry point is located in Germany and its exit point is in the Czech Republic. In 2009, the Bundesnetzagentur (BNetzA, the German regulatory authority) notified the Commission of two decisions that exempted the capacities for cross-border transmission of the planned OPAL pipeline from the application of the rules on third party access and tariff regulation laid down in Directive 2003/55. Those decisions concerned the shares belonging to the two owners of the OPAL pipeline. The same year, the Commission adopted a decision by which it requested the BNetzA to modify its decisions by adding certain conditions. Under those conditions, in particular, a dominant undertaking, such as Gazprom, could reserve only 50% of the cross-border capacities of the OPAL pipeline, unless it released onto the market a
volume of gas of 3 billion m³/year on that pipeline (‘the gas release programme’). In accordance with those three decisions of 2009, the capacities of the OPAL pipeline were exempted from the application of the rules on regulated third-party access and tariff regulation on the basis of Directive 2003/55. This decision was later (2016) slightly amended albeit not in substance.

Poland argue that the grant of a new exemption relating to the OPAL pipeline threatens the security of gas supply in the European Union, in particular in central Europe. Poland suggests that the 2016 decision breaches the principle of energy solidarity in that it enables Gazprom and undertakings in the Gazprom group to redirect additional volumes of gas onto the EU market by fully exploiting the capacities of the North Stream 1 pipeline. Taking into account the lack of significant growth in demand for natural gas in central Europe, according to Poland, that would, as its only possible consequence, influence the conditions of supply and use of transmission services on the pipelines competing with OPAL.

The General Court yesterday (the case no doubt may be appealed) held that the application of the principle of energy solidarity does not mean that the EU energy policy must never have negative impacts on the particular interests of a Member State in the field of energy. However, the EU institutions and the Member States are required to take into account, in the context of the implementation of that policy, the interests both of the European Union and of the various Member States and to balance those interests where there is a conflict. In neither the preparation of the 2016 decision nor its actual content is there any trace of the EC having considered the principle and its impact: the Decision is therefore annulled.

The case adds to the corpus of judgments where the CJEU is called upon to apply ‘principles’ and clearly emphasises preparatory due diligence, rather than second-guessing the actual application of the principle in substance.

Geert.

(Handbook of) EU Environmental Law (with Leonie Reins), 2017, Part I Chapter 2.

 

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Salvoni v Fiermonte. CJEU confirms quasi-notarial nature of Brussels Ia’s Article 53 certificate, other than for provisional measures. Consumer protection cannot be raised at that stage. Also rejects interpretative force of substantive consumer law rules for jurisdictional issues.

I reviewed Bobek AG Opinion in Case C-347/18 Salvoni v Fiermonte earlier. The referring court enquires whether the court of origin tasked with issuing the Article 53 Certificate (issued with a view to enabling swift recognition and enforcement) may, of its own motion, seek to ascertain whether the judgment whose enforcement is sought was issued in breach of the rules on jurisdiction over consumer contracts, so that it may, where appropriate, inform the consumer of any such breach and enable her to consider the possibility of opposing enforcement of the judgment in the Member State addressed.

The CJEU has entirely confirmed the AG’s Opinion (no English version at the time of posting): no such second-guessing of jurisdiction.

At 34 ff the Court points out an important distinction with certificates issued with a view to enforcing provisional measures: there, the court issuing the certificate does carry out jurisdictional review (whether the court ordering the measures  has jurisdiction as to the substance of the case).

At 40 ff the Court also confirms that substantive consumer protection laws (such as Directive 93/13) do not transfer to the procedural /jurisdictional rules of Brussels Ia: an important conclusion overall.

Geert.

(Handbook of) European private international law, 2nd ed. 2016, Chapter 2, Heading 2.2.8.2, Heading 2.2.16.

 

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CJEU confirms ‘targeting’ as a jurisdictional trigger for EU trademark infringement in AMS Neve.

Update 11 September 2019 Tobias Lutzi has excellent additional analysis hereUpdate 19 September 2019 Esther Noske has interesting German case-law background here and CDC are I bit more excited about the pioneering aspect of the case than I am, here – that is probably because I am not a pur sang intellectual property lawyer.

The CJEU today has held in C‑172/18 AMS Neve, confirming Szpunar AG’s Opinion which I briefly reviewed earlier. Eleonora Rosati has excellent analysis here and I am happy to refer entirely. As I note in my handbook, ‘targeting’, ‘directed at’ and ‘business models’ are a variety of jurisdictional triggers across EU law. The lack of uniform terminology does not assist the unsuspected reader or practitioner.

Geert.

(Handbook of) EU private international law, 2nd ed. 2016, Heading 2.2.8.2.5; Heading 2.2.11.2.4 (quoted by the AG in his Opinion).

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Supreme v Shape: Lifting attachments (‘garnishments’) on assets of international organisations in another state. Dutch Supreme Court refers to CJEU re exclusive jurisdiction, and the impact of claimed immunity.

Many thanks Sofja Goldstein for alerting me a while back to the Hoge Raad’s decision to refer to the CJEU and what is now known to be Case C-186/19. The case concerns SHAPE’s appeal to a Dutch Court to lift the attachment aka ‘garnishment’ of a Belgian NATO /SHAPE escrow account by Supreme Services GmbH, a supplier of fuel to NATO troops in Afghanistan. As Sofja reports, in 2013, Supreme and Allied Joint Force Command Brunssum (JFCB), the Netherlands-based regional headquarters of NATO, set up an escrow bank account in Belgium with the goal of offsetting any contingent liabilities on both sides at the end of Basic Ordering Agreements (BOAs). Supreme Services in 2015 initiated proceedings against SHAPE and JFCB in the Netherlands arguing that the latter parties had not fulfilled their payment obligations towards Supreme. It also attached the account in Belgium.

SHAPE and JFCB from their side seized the Dutch courts for interim relief, seeking (i) to lift the attachment, and (ii) to prohibit Supreme from attaching the escrow account in the future.

The Supreme Court acknowledges the Dutch Courts’ principle jurisdiction at the early stages of the procedure on the basis of Article 35’s rule concerning provisional measures, yet at this further stage of the proceedings now feels duty-bound firstly under Article 27 of Brussels Ia to consider whether Article 24 paragraph 5 applies (Belgium being the place of enforcement of any attachment should it be upheld); further and principally, whether the Brussels I a Regulation applies at all given that SHAPE and NATO invoke their immunity (it is in my view unlikely that the invocation or not of an immunity defence may determine the triggering or not of Brussels Ia), this immunity interestingly being the result of a Treaty not between The Netherlands and NATO but rather resulting from the headquarter agreement between NATO and Belgium.

An interesting example of public /private international law overlap.

Geert.

 

 

 

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