Archive for category EU law – General
Ships classification and certification agencies: The immunity ship ain’t sailing according to Szpunar AG in Rina.
In C‑641/18 Szpunar AG opined on Tuesday and notes that the request of the referring court brings to mind the current debate about the influence of human rights on private international law. It seeks to ascertain whether and, if so, to what extent the scope of ‘civil and commercial’ in the Brussels Ia Regulation may be influenced by the interest in ensuring access to the courts, a right guaranteed by Article 47 Charter.
(The case itself is subject to Brussels I which did not yet include ‘acta iure imperii’. As the AG notes at 56, this is merely a clarification following CJEU interpretation of the previous concept.
Relatives of the victims, along with survivors of the sinking of the Al Salam Boccaccio ’98, a ship sailing under the flag of the Republic of Panama, which happened in 2006 on the Red Sea and caused the loss of more than a thousand lives, have brought an action before the District Court, Genoa against the companies Rina SpA et Ente Registro Italiano Navale. Claimants argue that the defendant’s certification and classification activities, the decisions they took and the instructions they gave, are to blame for the ship’s lack of stability and its lack of safety at sea, which are the causes of its sinking.
Defendants plead immunity from jurisdiction. They state that they are being sued in respect of certification and classification activities which they carried out as delegates of a foreign sovereign State, namely the Republic of Panama. They argue activities in question were a manifestation of the sovereign power of the foreign State and the defendants carried them out on behalf of and in the interests of that State.
The AG first of all reviews how the principle of customary international law concerning the jurisdictional immunity of States relates to the scope ratione materiae of Brussels Ia. He starts his analysis noting that in the absence of codification at international level (international conventions on the issue not having met with great success), the principle concerning the jurisdictional immunity of States remains to a large extent governed by customary international law.
There is little use in quoting large sections of the Opinion verbatim so please do refer to the actual text: the AG opines (referring ia to C-154/11 Mahamdia) that it is unnecessary to refer to the principle of customary international law concerning State immunity from jurisdiction when considering the scope ratione materiae of Brussels Ia. Those principles he suggests do play a role when it comes to enforcing any exercise of such jurisdiction against the will of the party concerned.
At 46: ‘the distinction between disputes which are civil or commercial matters and those which are not must be drawn by reference to the independent criteria of EU law identified by the Court in its case-law. Consequently, an act performed in the exercise of State authority (acta iure imperii) from the perspective of the law relating to immunity, is not necessarily the same as an act performed in the exercise of State authority according to the independent criteria of EU law.’ (The latter as readers of the blog will know, are not always clearly expressed; see ia my review of Buak).
In the second place, the AG then considers whether an action for damages brought against private-law entities concerning their classification and/or certification activities falls within the scope of BIa. At 83, following extensive review of the case-law (almost all of which I also reviewed on the blog and for earlier cases, in Chapter 2 of the Handbook), the AG opines that neither the fact that the acts in question were performed on behalf of and in the interests of the delegating State nor the possibility of the State’s incurring liability for harm caused by those acts, in itself conclusively characterises those acts as ones performed in the exercise of powers falling outside the scope of the ordinary legal rules applicable to relationships between private individuals. 814/79 Rüffer also makes a non-conclusive appearance.
At 95 then follows the core of the factual assessment: defendants’ role is limited to carrying out checks in accordance with a pre-defined regulatory framework. If, following the revocation of a certificate, a ship is no longer able to sail, that is because of the sanction which, as the defendants admitted at the hearing, is imposed by Panama law. Not acta iure imperii – the issue falls under Brussels Ia.
Finally, must as a result of a plea of immunity from jurisdiction a national court decline to exercise the jurisdiction which it ordinarily derives from the Regulation? In a section which will be interesting to public international lawyers, the AG reviews international and EU law (particularly Directive 2009/15) and concludes that there is no principle in international law which grants immunity to certification agencies in cases such as the one at hand.
To complete the analysis, the AG opines that should the Court disagree with his views on immunity, the national court’s views on jurisdiction would not be impacted by the right to court guarantees of the Charter, for there is no suggestion at all that the victims would not have proper access to Panamian courts for their action.
Note of course that the Opinion does not address lex causae.
(Handbook of) EU private international law, 2nd ed. 2016, Chapter 2, Heading 126.96.36.199.1.
The mooted Flemish ban on fireworks displays. A concise primer (with referral) on exhaustion, property rights (ECHR) and the internal market (TFEU).
Anyone short of exam essay Qs, consider the planned Flemish ban (with room for local, event-related exceptions) on fireworks displays. Akin to the issues in Ivory Ban or pet collars, at the core of the legal analysis is the legality of use restrictions on goods lawfully marketed in other Member States (see also my brief review of Amsterdam’s booze bikes here).
The exhaustive effect or not of EU secondary law will have to be discussed, as will Article 34 TFEU (including consultation and commissioned research issues and of course proportionality), and indeed A1P1 (Article 1, first Protocol) ECHR.
(For a recent more locally relevant issue, see the Supreme Court’s (Raad van State) December 2019 annulment of an Antwerp highway code rule banning the use of quads and introducing a strict exemption policy).
Hot on the heels of yesterday’s post on e-collars, a short note on yet another trade and animal welfare /biodiversity case. In  EWHC 2951 (Admin) Friends of Antique Cultural Treasures v Secretary of State for the environment, food and rural affairs, Justice Jay (‘Jay J’ even though correct might sound a bit too intimate) upheld the UK’s planned ban on ivory trade, stricter than anything in place elsewhere. As a general rule, the Act interdicts the sale of antique worked ivory, that is to say pre-1947 artefacts, unless one of limited exemptions is applicable.
The discussion engages CITES, pre-emption /exhaustion by harmonised EU law, the environmental guarantee of Article 193 TFEU (albeit not, oddly, the issue of notification to the EC), Article 34 TFEU, and A1P1 ECHR.
On uncertainty, Justice Jay refers to the precautionary principle: at 155: ‘we are in the realm of scientific and evidentiary uncertainty, and the need for a high level of protection. §3.1 of the Commission’s 2017 Guidance makes that explicit. Although the evidence bearing on the issues of indirect causation and demand in Far Eastern markets may be uncertain, statistically questionable, impressionistic and often anecdotal, I consider that these factors do not preclude the taking of bold and robust action in the light of the precautionary principle.’
Rosalind English has analysis here and refers even to Edmund de Waal’s novel The Hare with the Amber Eyes which has been on my reading list after my wife recommended it – this is a good reminder.
EU environmental law (with Leonie Reins), Edward Elgar, 2018, p.28 ff., and Chapter 17 (p.308 ff).
The UK ban on e-collars. High Court finds decision does not breach property rights (ECHR) or internal market (TFEU).
I tweeted the judgment the day it was issued, apologies for late succinct review. I wrote a few years back on the legality of use restrictions on goods lawfully marketed in other Member States, and see also my brief review of Amsterdam’s booze bikes here. In  EWHC 2813 (Admin) The Electronic Collar Manufacturers Association v Secretary of State for Environment, Food and Rural Affairs, Morris J upheld the UK Government’s ban on e-collars (a hand-held remote-controlled (not automated: a distinction that matters as Rosalind English points out) e-collar device for cats and dogs, used particularly in dogs for training purposes).
His analysis engages all the right issues in discussing the lawfulness of a ban at 204 ff under Article 34 TFEU (including consultation and commissioned research issues and of course proportionality), less focused than I would have expected perhaps on the fact that these items are lawfully marketed elsewhere in the EU, and indeed A1P1 (Article 1, first Protocol) ECHR. The remainder of the judgment discusses internal UK judicial review. An excellent primer on trade and animal welfare under EU and ECHR law.
Rather than blogging my own piece on this week’s CEPS study (in which no mention is made of the covert study supporting same), I am happy to reblog the analysis of one of the co-authors of my earlier paper on same. Excellent analysis with which I agree entirely.
K J Garnett
On the day before Commission President Ursula von der Leyen’s new team was voted in by the European Parliament, an independent, Brussels-based, think-thank CEPS published their third report on the Innovation Principle : ‘Study supporting the interim evaluation of the innovation principle’. With von der Leyen promising to tackle climate change and promote a European Green Deal now would be a good time to examine whether the innovation principle fits in with this vision for greater sustainability or whether its true intention is to curb Europe’s strict environmental laws?
As lawyers we are familiar with general principles and those practicing European law are familiar with the fact that the EU applies a number of general principles : proportionality, subsidiarity, substantive & fundamental human rights, precaution,… Authority for the EU’s legal principles stems from primary law, typically the Treaties themselves or, more rarely, when the CJEU…
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Steady now. Eva Glawischnig-Piesczek v Facebook. The CJEU on jurisdiction and removal of hate speech.
My interest in C-18/18 Eva Glawischnig-Piesczek v Facebook as I noted in my short first review of the case, concerns mostly the territorial reach of any measures taken by data protection authorities against hosting providers. The Court held last week and o boy did it provoke a lot of comment.
The case to a large degree illustrates the relationship between secondary and primary law, and the art of reading EU secondary law. Here: Article 15 of the e-commerce Directive 2001/31 which limits what can be imposed upon a provider; and the recitals of the Directive which seem to leave more leeway to the Member States. Scant harmonisation of tort law in the EU does not assist the Institutions in their attempts to impose a co-ordinated approach.
The crucial issue in the case was whether Article 15 prohibits the imposition on a hosting provider (Facebook, in this case) of an obligation to remove not only notified illegal content, but also identical and similar content, at a national or worldwide level? The Court held the Directive does not as such preclude such order, and that as to the worldwide injunctive issue, EU law has not harmonised and that it is up to the Member States to direct in any such orders in compliance with public international law.
The judgment to a large degree concerns statutory interpretation on filtering content, which Daphne Keller has already reviewed pre the judgment succinctly here, Dan Svantesson post the judgment here, as did Lorna Woods, and a frenzied Twitter on the day of the judgment e.g. in this thread. A most balanced analysis is provided by Andrej Savin here. e-Commerce law is not the focus of this blog, neither my professed area of expertise (choices, choices). I do want to emphasise though
- that as always it pays to bear in mind the CJEU’s judicial economy. Here: the need to interpret its judgment in line with the circumstances of the case. As Steve Peers noted, the Austrian court had ruled that the post was defamatory, which is a recognised basis for limiting freedom of expression; see also at 40: ‘In that regard, it should be made clear that the illegality of the content of information does not in itself stem from the use of certain terms combined in a certain way, but from the fact that the message conveyed by that content is held to be illegal, when, as in the present case, it concerns defamatory statements made against a specific person.‘ Nota bene, the same need to read the judgment in context goes for the earlier Google v CNIL case, applying Directive 95/46 and the GDPR, which I review here.
- that speaking strictly as a member of the public who has seen the devastating effect of ‘social’ media on people close to me, the technical discussions on filtering (‘what filter does the CJEU think might possibly ever be available to FB to remove content in the way the Court wishes’) are emphatically beside the point. The public justifiably are not interested in the how. A service is offered which clearly has negative effects on EU citisens. Remedy those effects, or remove the service from those citisens. That is true for the negative impacts of goods (in 25 years of regulatory Bar practice I have seen plenty of that). There is no reason it should be any less true for services.
The jurisdictional issues are what interest me more from the blog’s point of view: the territorial scope of any removal or filtering obligation. In Google viz the GDPR and the data protection Directive, the Court confirmed my reading, against that of most others’, of Szpunar AG’s Opinion. EU law does not harmonise the worldwide removal issue. Reasons of personal indemnification may argue in specific circumstances for universal jurisdiction and ditto reach of injunctive relief on ‘right to be forgotten’ issues. Public international law and EU primary law are the ultimate benchmark (Google V CNIL). It is little surprise the Court held similarly in Eva Glawischnig-Piesczek, even if unlike in Google, it did not flag the arguments that might speak against such order. As I noted in my review of Google, for the GDPR and the data protection Directive, it is not entirely clear whether the Court suggests EU secondary law simply did not address extraterritoriality or decided against it. For the e-commerce Directive in Eva Glawischnig-Piesczek the Court notes at 50-52
Directive 2000/31 does not preclude those injunction measures from producing effects worldwide. However, it is apparent from recitals 58 and 60 of that directive that, in view of the global dimension of electronic commerce, the EU legislature considered it necessary to ensure that EU rules in that area are consistent with the rules applicable at international level. It is up to Member States to ensure that the measures which they adopt and which produce effects worldwide take due account of those rules.
In conclusion, Member States may order a host provider to remove information covered by the injunction or to block access to that information worldwide within the framework of the relevant international law. To my knowledge, the Brussels Court of Appeal is the only national court so far to consider public international law extensively viz the issue of jurisdiction, and decided against it, nota bene in a case against Facebook Inc.
Any suggestion that the floodgates are open underestimates the sophisticated engagement of national courts with public international law.
In general, the CJEU’s approach is very much aligned with the US (SCOTUS in particular) judicial approach in similar extraterritoriality issues (sanctions law; export controls; ATS;…). There is no madness to the CJEU’s approach. Incomplete: sure (see deference to national courts and the clear lack of EU law-making up its legislative mind on the issues). Challenging and work in progress: undoubtedly. But far from mad.
(Handbook of) EU Private International Law, 2nd ed. 2016, Chapter 2, Heading 188.8.131.52, Heading 184.108.40.206.5.