Tag: Belgie

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Lernout & Hauspie: US opt-out class action settlement accepted by Belgian court.

Belgium’s Lernout & Hauspie case recently entered a further stage in its civil law chapter. The case is part of Belgium’s (and especially Flanders’) collective memory as an illustration of what can go wrong when markets and investors alike are fooled by corporate greed. Is it world-famous, in Belgium: for those outside, Wiki should help.

Of interest to this blog is the recent judgment of the Gent criminal court on the civil chapter of the case: see my colleague proximus Stefaan Voet’s analysis here. Stefaan has helpfully translated the most relevant sections of the judgment, in particular the court’s rejection of the argument that the US opt-out class action settlement were contrary to Belgium’s ordre public. The court, in my view entirely justifiably, holds that Belgium’s Private international law act does not oppose recognition and enforcement. Of note is the extensive comparative reference which the court makes not just to existing Belgian law on class actions (the Belgian legal order can hardly oppose what it tentatively has introduced itself), but also to a European Recommendation on comparative class action law in the EU (a sort of Ius Commune idea).

Recognition and enforcement rarely makes it to substantive review in Belgian case-law. This judgment is one of note.

Geert.

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It’s true! Belgian Supreme Court confirms order for Yahoo! to hand over IP-addresses.

Jurisdiction and the internet is a topic which has featured once or twice on this blog recently (and in a  paper which I have already referred to in those earlier postings). Belgian’s Supreme Court in ordinary (the Hof van Cassatie /Cour de Cassation) employed the objective territoriality principle in a case with roots going back to 2007 (the fraudulent purchase of and subsequent failure to pay for electronic equipment from a shop in Dendermonde, Belgium), Yahoo! was requested to hand over the IP addresses associated with e-mail accounts registered to Yahoo!’s e-mail service. Yahoo! Inc, domiciled in California, refused to comply, triggering fines under criminal law. (It’s corporate slogan btw used to be ‘it’s true!’ Hence the title of the post).

Responding to Yahoo!s claims that Belgium was imposing its criminal laws extraterritorially, the Court of Appeal had held that Yahoo! is territorially present in Belgium, hereby voluntarily submitting itself to the jurisdiction of the Belgian authorities: it takes an active part in economic life in Belgium, among others by use of the domain name http://www.yahoo.be, the use of the local language(s) on that website, pop-up of advertisements based on the location of the users, and accessibility in Belgium of Belgium-focussed customer services (among others: a ‘Belgian’ Q&A, FAQ, and post box). [Notice the similarity with the Pammer /Alpenhof criteria]. The Court of Appeal had suggested that the accusations of extraterritoriality could only be accepted had there been a request for the handover of data or objects which are located in the USA, with which there is no Belgian territorial link whatsoever, and if the holder of these objects or data is not accessible in Belgium (either physically or virtually).

The Supreme Court on 1 December confirmed all of the Court of Appeal’s arguments, essentially linking them to the objective territoriality principle. Yahoo! actively directs its activities towards consumers present in Belgium.

Even though the case involves a criminal proceeding, the Court’s judgment inevitably (not necessarily justifiably) will be used as further support for the Belgian tussle with Facebook.

Geert.

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Belgium’s origin labelling of products from Israeli – occupied territories. A lot of beating round the bush.

Update 14 November 2019 See for the European legal context the CJEU earlier in this week in C-363/18 Organisation juive européenne holding that foodstuffs originating in a territory occupied by the State of Israel must bear not only the indication of that territory but also, where those foodstuffs come from a locality or a group of localities constituting an Israeli settlement within that territory, the indication of that provenance.

The Belgian Government has published its ‘notice to retailers concerning origin labelling of products from Israeli occupied territories’. The initiative got a lot of press, in Belgium at least, the past few days. It was announced as the culmination of lengthy preparation in light of the existing difficulties in particular with the EU-Israel and EU-Palestine association agreements. Good summary of those difficulties is provided here by DEFRA. (Compiled in 2009 but the issues have remained more or less the same. Note that the Belgian notice refers as far as the exiting origin obligations are concerned, essentially revisits the DEFRA compilation).

Generally, initiatives like these are problematic at three levels.

Firstly, purely legally, specifically international trade law. Countries introducing these types of regimes (including the UK, Denmark, and now also Belgium) allege that all that is envisaged is consumer information, without any signal or pressure from government to boycott said products. That is cosmetic at best. One cannot seriously argue that given the current context, the ‘informative notice’ is not related to a political signal by the Belgian Government. Any consequences of the notice therefore in my view without doubt are sponsored by the Government and hence fall under WTO discipline. (Note that Palestine is not a WTO Member but Israel is).

That same context feeds the argument that the introduction of a label of origin for the occupied Palestine territories serves to make all Israeli produce suspicious in the eyes of the Belgian consumer. That is a highly relevant angle for international trade law.
Secondly, the practical angle. A label of origin requirement is not new. The very existence of different agreements between Palestine, Israel and the EU requires it. Yet controlling those labels has proved impossible so far. Suggestions of lengthy preparation made me curious about the regime the Belgian Government would have devised. The answer is simply that is has devised none. The notice simply says

In order to clarify that these products originate from an Israeli settlement, the following labels are recommended: – ‘Product from the Golan Heights (Israeli settlement)’ – ‘Product from the West Bank (Israeli settlement)’. For products from the West Bank that do not originate from settlements, the label ‘product from the West Bank (Palestinian product)’ is recommended.

There are no indications of who is supposed to attach the labels (‘the retail industry’), who will inspect them, what rules of origin percentages apply. etc.

I am not an economist and hence not in a position to advice whether boycotts such as these actually reach those against whom they are intended. (Which is the third level of problems). Neither am I a public international lawyer who sees clear in the myriad of territorial and other claims which sadly dog Israel-Palestine relations. I am however a litigator and in that capacity I have always preferred doing things with blazing guns once it comes down to boycotts, consumer driven or not: state your case and do not beat around the bush. This notice is disappointing in view of the noise created around it in recent days and it pussyfoots around the real Government intention.

Geert.

 

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