Tag: Brussels I Regulation

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Of rocks and hard stones for national courts – Villalon AG in Mühlleitner: No need for restrictive approach to the protective jurisdictional grounds for consumers in Brussels I

Villalon AG has opined in Case C-190/11 Mühlleitner [Opinion as yet not available in English].

Article 15 of the Brussels I ‘Jurisdiction’ Regulation, offers protective jurisdictional rules for consumers, provided one or two conditions are met. Article 15(1)(c) [statutory law likes its subdivisions) offers the generic criterion for application:

‘Article 15

1.      In matters relating to a contract concluded by a person, the consumer, for a purpose which can be regarded as being outside his trade or profession, jurisdiction shall be determined by this Section, without prejudice to Article 4 and point 5 of Article 5, if: (…)

(c)      in all other cases, the contract has been concluded with a person who pursues commercial or professional activities in the Member State of the consumer’s domicile or, by any means, directs such activities to that Member State or to several States including that Member State, and the contract falls within the scope of such activities.’

In Pammer /Alpenhof,   Alpenhof had argued amongst others that that its contract with the consumer is concluded on the spot and not at a distance, as the room keys are handed over and payment is made on the spot, and that accordingly Article 15(1)(c) of Regulation No 44/2001 cannot apply. The Court of Justice had answered this with the very paragraph which has now tempted the Oberster Gerichtshof – Austria, into the preliminary review, para 87:

‘ In that regard, the fact that the keys are handed over to the consumer and that payment is made by him in the Member State in which the trader is established does not prevent that provision from applying if the reservation was made and confirmed at a distance, so that the consumer became contractually bound at a distance.’

This paragraph seemed to suggest ‘at a distance’ as the trigger for the application of Article 15(1)(c) which in turn led to the preliminary question:

Does the application of Article 15(1)(c) [   ] presuppose that the contract between the consumer and the undertaking has been concluded at a distance?

Villalon AG replied on 24 May, making specific reference to the history of Article 15, in particular with reference to the old text, under the Brussels Convention. That old provision seemed to imply that where the consumer’s contracting party had encouraged him to leave his Member State of domicile so as to conclude the contract elsewhere, the consumer could not make recourse to the protective regime. Other changes to the relevant title, too, suggested if anything that Council and Commission’s intention with the new provisions was definitely not to limit their scope of application: had they intended to do so, the AG suggests, the Institutions would have limited Article 15’s scope to contracts concluded at a distance. Court of Justice case-law hints at the same need for a wide approach [in particular, Ilsinger, where the Court of Justice held that the scope of Article 15(1)(c) appears ‘to be no longer being limited to those situations in which the parties have assumed reciprocal obligations.’]

The AG concludes with the suggestion that the reference to ‘distance’ in para 87 of Alpenhof refers to a factual circumstance, rather than a condition for application.

To many the conclusion may seem obvious, and the issue covered by acte clair (meaning the national court could have referred to the arguably obvious meaning of the provision, not to have to refer to the Court of Justice). In particular, the COJ has repeatedly emphasised the relevance of the consumer title in the Jurisdiction Regulation. On the other hand, however, the same Court has been quite anxious to give national courts detailled and specific instructions on the application of tiny details in the Regulation, making application of the acte clair doctrine quite difficult: many things one thought were clear, have been answered by the Court in unexpected ways.

National courts therefore are caught between the proverbial rock and the hard stone. Either they refer profusely, thereby feeding the cycle of micromanagement. Or they make extended use of acte clair, thereby risking unequal application of the Regulation (and potentially European Commission irk). On the issue of Article 15(1)(c) at least, the former would seem to prevail: in Slot, Case C-98/12 (hitherto still pending), the German Bundesgerichtshof has asked essentially the same question.

Geert.

 
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West Tankers ripples again and again – Tribunal corrected for rejection of its jurisdiction on damages for breach of obligation to arbitrate

The West Tankers v Allianz litigation continues to ripple. The continuing process must also I fear excuse the rather long title of this post. I reported earlier on the confirmation by the Court of Appeal of the High Court’s recognition of the West Tankers award. This opened up the prospect of this judgment travelling through the EU as a ‘judgment’ under the Brussels I Regulation (which might thwart the ongoing Italian proceedings).

At the request of West Tankers, the High Court has now ruled that the panel was wrong in assuming that the Court of Justice’s finding in West Tankers, circumscribed its jurisdiction to award damages for breach of an obligation to arbitrate, by virtue of the right of the Respondents to bring proceedings under Article 5(3) before the Italian courts. The tribunal essentially held (as summarised in the current judgment) that like the English court, it was bound by the principle of effective judicial protection not to interfere with or deprive the Respondents of that right in European law. Flaux J, seeking support in Kokott AG’s very opinion in West Tankers (and the  Court of Justice’s absence of disagreement on that point), held that the jurisdiction Regulation, as is evident from the Judgment in West Tankers, curtails the English courts in their power to issue anti-suit injunctions. However it does not curtail the jurisdiction of the arbitral panel.

Leave to appeal was granted. The judgment therefore is unlikely to be the last instalment.

Geert.

 

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‘Exorbitant’ head of jurisdiction of Article 14 Code Civil (France) is not unconstitutional. Probably.

On 29 February last, the French Cour de Cassation decided not to grant leave for the constitutionality (or not) of Article 14 of the French Code Civil to be reviewed by the French Constitutional Court. Article 14 is an ‘exorbitant’ rule of jurisdiction. These are jurisdictional grounds in national law which rest on very weak of even spurious grounds, and which by virtue of Articles 3 and 4 of the Brussels I Regulation may not be invoked against those domiciled in one of the EU Member States. However they do regain full force as against those not domiciled in any of the EU Member States.

Article 14 Code Civil grants jurisdiction in civil cases to French courts, on the simple ground that plaintiff be a French national. A similarish provision in French criminal law was recently and famously invoked (but failed) in the prof Joseph Weiler litigation (French version here and unofficial English translation here).

The alleged unconstitutionality lies in the perceived ‘unfairness’ of such trials vis-a-vis the (non French, indeed by virtue of the Brussels I Regulation the non EU) defendants. The Cour de Cassation saw no merits in the arguments, arguably mostly on the ground of the diminishing practical impact of the provision. The Cour’s decision means that for the time being at least , the issue will not be sub judice in the French Constitutional  Court, however that does not mean of course that it might not end up at the European Court of Human Rights before long.

Geert.

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Patent infringement and the Brussels I Regulation – Cruz Villalon AG revisits some old chestnuts in Solvay

Solvay, Case C-616/10, offers a great opportunity for the European Court of Justice to revisit a number of old chestnuts in the application of the Brussels I Regulation (the Jurisdiction Regulation or ‘JR’): the exclusive ground of jurisdiction with respect to intellectual property rights, of Article 22(4); multipartite litigation in Article 6 JR; and finally provisional measures, referred to in Article 31. Cruz Villalon AG’s Opinion was issued on 29 March.

Solvay SA, a company established in Belgium and holding a European patent, valid in more than one Member State [don’t ask – European patent law is less harmonised than one might hope and even a ‘European’ patent does not necessarily and automatically cover all Member States], brought an action in the Rechtbank ’s-Gravenhage in the Netherlands for infringement of several national parts of the patent, in particular against three companies originating from two different Member States, Honeywell Fluorine Products Europe BV, established in the Netherlands, and Honeywell Belgium NV and Honeywell Europe NV, established in Belgium, for marketing a product manufactured by Honeywell International Inc. that was identical to the product under the above patent.  In the course of the proceedings, Solvay lodged an interim claim against the defendants in the main proceedings, seeking provisional relief in the form of a cross-border prohibition against infringement for the duration of the main proceedings.

Firstly, with respect to the multipartite jurisduction element: Article 6(1) allows the applicant to sue several defendants before the court where any one of them is domiciled, provided the claims are’ so closely connected that it is expedient to hear and determine them together to avoid the risk of irreconcilable judgments resulting from separate proceedings’. Per Roche Nederland, the Court had controversially held that parallel actions for infringement in different Member States, which, in accordance with Article 64(3) of the Munich Convention, must be examined in the light of the national law in force, are not in the context of the same legal situation and hence any divergences between decisions cannot be treated as contradictory – leaving no room for application of Article 6(1) to the benefit of holders of European patents vis-a-vis actions for infringement in different Member States. Cruz Villalon AG proposes to distinguish, not to overturn, Roche Nederland on the ground that in the case at issue, the objectionable behaviour concerned more than one undertaking, domiciled in more than one Member State, however accused of the same behaviour in the same Member State. If Article 6(1) were not to be applicable, the courts concerned would hence hold on the basis of the same lex loci protectionis (that of the Member State in which the alleged conduct is said to have taken place) and hence the risk of irreconcilable judgments great.

The AG then turns to the application of Article 22(4), dealt with previously in particular in GAT. Here (as helpfully summarised by the AG) , the referring court asks, in essence, whether the fact that a defence of invalidity of a patent has been raised in interim proceedings for a cross-border prohibition against infringement, in parallel to main proceedings for infringement, is sufficient, and, if so, under what formal or procedural conditions, for Article 22(4) to become applicable. Applicability of Article 22(4)’s exclusive ground for jurisdiction is highly relevant: firstly, the court dealing with the case has to decline jurisdiction for the main proceedings on the basis of Article 25 (when an exclusive ground of jurisdiction is at stake, all other courts have to declare themselves without jurisdiction) and, secondly, as a consequence, it is then required to consider its competence to adjudicate on the interim proceedings on the basis of Article 31’s jurisdictional ground for provisional measures. After careful consideration in which the AG gives a brief ‘tour d’horizon’ of the various procedural realities that might exists, he advises that Article 22(4) is not applicable when the validity of a patent is raised only in interim proceedings, ! in so far as the decision likely to be adopted at the end of those proceedings does not have any final effect. Whether the latter is the case depends on the applicable law (see my comment above, re incomplete harmonisation of EU patent law).

I wonder whether the Court would be put off by the AG’s sidestep into what he calls ‘procedural reality’ (not a criterion which the Court generally is happy to entertain in the application of the JR) and whether, similarly, the criterion ‘final effect in accordance with the applicable law’ would offer enough legal certainty (which the CoJ definitely craves in the application of the JR).

One final consideration in the AG’s opinion is the application of Article 31’s jurisdictional ground for provisional measures (this question will only feature in the eventual judgment, should the Court reject the AG’s view on Article 22(4)). Article 31’s scope is limited. Amongst others, the measures within its scope must be of a ‘provisional’ nature, that is to say, per Reichert, be intended to preserve a factual or legal situation so as to safeguard rights the recognition of which is sought elsewhere from the court having jurisdiction as to the substance of the matter: that is a ratione temporis limitation.  In Van Uden, the court added a limitation ratione loci: there has to be a ‘real connecting link’ between the subject-matter of the provisional measures sought and the territorial jurisdiction of the Member State of the court seized. The AG suggests that applied to intellectual property rights (but with wider ramification), this condition does not imply that the measure must not have any ‘extraterritorial’ effect: rather, that for Article 31  to apply, there has to be a  minimum territorial localisation of the provisional measure sought. The existence of such real connecting link should be considered chiefly in the light of the enforcement procedures of the Member State of the court seized.

Not all of the considerations of the AG are likely to be entertained by the Court. Neither do they cover all aspects of the troublesome application of Article 22(4) [not much of which has made it into the review of the JR].

Geert.

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The Jurisdiction Regulation, trademarks and the internet – The Court of Justice in Wintersteiger

I have already reported recently on the application of the Brussels I Regulation and the internet [see here for my confused state on the Judgment in ‘G’]. In Wintersteiger (Judgment of 19 April 2012) the applicant is the proprietor of an Austrian trade mark. The defendant was a competitor established in Germany, who had registered Wintersteiger’s name as an AdWord on Google’s German search service. Whence users of google.de entering ‘Wintersteiger’ (looking for that make’s ski and snowboarding service tools) receive a link to Wintersteiger’s website as first search result, but also as the first AdLink on the right hand side of the screen, an advert for and link to the competitor’s website – which Wintersteiger considered an abuse of its trademark.

The case once again raised the question how one applies Article 5(3)’s ‘place where the harmful event occurred’ (since Mines de Potasse split in ‘place where the event giving rise to the damage’ and ‘place where the damage’ occurred as being two alternative connecting factors)  in an internet context.

The judgment of the Court of Justice confirms that the connecting factor ‘centre of interests’ in Kylie Minogue and eDate Advertising only holds for infringement of personality rights in an internet context. Trademark violation is distinguished, on the grounds that rebus sic stantibus intellectual property rights are protected on a territorial basis. The Court confines the ‘place where the damage occurred’ as the Member State in which the trade mark is registered. For the ‘place where the event giving rise to the damage’, the Court upheld ‘place of establishment of the advertiser’ as the jurisdictional basis (the Advocate General’s ‘means necessary for producing, a priori, an actual infringement of a trade mark in another Member State’ is a  more generic criterion however the Court did not uphold this as such).

Precedent value of the judgment may be limited due to the specific facts of the case and the questions put to the Court (for non-EU readers: the Court of Justice practises judicial economy, hence questions not specifically asked are not entertained). In particular, the conclusion may only hold absolutely where there is only one trade mark held, in only one Member State (for EU readers and non-EU readers alike: EU trademark protection is a lot less harmonised than one may have assumed). The referring court moreover did not flag the many issues surrounding provisionary measures and intellectual property rights (see Article 31 of the Regulation and the Opinion of the same AG in Solvay, on which I report here).

Geert.

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