Posts Tagged CJEU
Saugmandsgaard ØE in Libuše Králová v Primera Air Scandinavia: the Feniks ‘contractual relation’ train thunders on, yet restraint is shown on the consumer section, even for package travel.
In C-215/18 Libuše Králová v Primera Air Scandinavia, Saugmandsgaard ØE AG now unsurprisingly (following the CJEU predecent of Feniks and Flightright), advised that in a package of services acquired from a travel agent, where there is no direct agreement with the airline carrying out the flight part of the package, there is a ‘contract’ between the individual and the airline within the meaning of Article 7(1) BIa.
At 37 the AG emphasises the element of predictability on the part of the airline, who should not be surprised to be sued by the individual whom they agree with the travel agency to transport, both in the place of take-off and landing, per Zurich Insurance.
However unlike the Commission, the AG supports a less extensive interpretation of the consumer section. Package travel as defined in Directive 90/314, unlike simple tickets for transport only, are covered by the protective provisions of Article 17 ff BIa. Yet the AG proposes to extend that regime only to the direct relationship between the travel agent and the consumer, not the airline who merely carries out the transport side of the arrangement. At 48 ff the AG sets out his reasons for the limitation: the emphasis in the consumer section on the very consumer and professional party who concluded the contract (48-49); the distinction with Maletic since in the case at issue claimant is after the airline company only, not an in solidum finding against the agency and the airline (5-52); and of course the need for strict interpretation.
Note of course the different balance struck by the AG as opposed to e.g. the High Court in Bonnie Lackey.
(Handbook of) European private international law, 2nd ed. 2016, Chapter 2, Heading 126.96.36.199.
Swamdi Ramdev v Facebook, Google, Youtube et al at the Delhi High Court: Worldwide removal ordered without much hesitation.
‘The race between technology and the law could be termed as a hare and tortoise race – As technology gallops, the law tries to keep pace.’ (see further below).
Thank you Daphne Keller for flagging CS (OS) 27/2019 Swami Ramdev et al v Facebook et al at the Delhi High Court on 23 October. Defendants are Facebook Inc, Google Inc, YouTube LLC, Twitter etc. The allegation of Plaintiffs is that various defamatory remarks and information including videos, found earlier to have been defamatory (a judgment currently before the Supreme Court without having been stayed), are being disseminated over the Defendants’ platforms.
At 6 Prathiba M Singh J summarises the parties’ position: None of the Defendants have any objection to blocking the URLs and disabling the same, insofar as access in India is concerned. However, all the Defendant platforms have raised objections to removal/blocking/disabling the impugned content on a global basis. On the other hand, the Plaintiffs argued that blocking merely for the Indian territory alone is not sufficient as the content would be accessible through international websites, which can be accessed in India. Thus, according to the Plaintiffs, for the remedy to be effective, a global blocking order ought to be passed.
Particularly in the review of plaintiff’s submission at 8 ff, the parallel is clear with the discussions on the role of intermediaries in Eva Glawischnig-Piesczek v Facebook. Reference of course is also made to Equustek and, at 64, to the CJEU in Google v CNIL. Facebook refers to the material difference between defamation laws across the globe: at 10: ‘Defamation laws differs from jurisdiction to jurisdiction, and therefore, passing of a global disabling order would be contrary to the principle of comity of Courts and would result in conflict of laws.’
At 44 ff Prathiba M Singh J extensively reviews global precedent, and, at 69, to Eva Glawischnig-Piesczek v Facebook. At 88 ff this leads justice Singh
Firstly, to uphold fairly straightforwardly the court’s power to order global delisting given the origin in India of the original act of uploading: ‘The act of uploading vests jurisdiction in the Courts where the uploading takes place. If any information or data has been uploaded from India on to a computer resource which has resulted in residing of the data on the network and global dissemination of the said information or data, then the platforms are liable to remove or disable access to the said information and data from that very computer resource. The removal or disabling cannot be restricted to a part of that resource, serving a geographical location.’
>>>Clearly the authority of the finding (likely to be appealed) may therefore be limited to situations of content uploading from inside the jurisdiction.
Further, at 99, to make an effectiveness argument: ‘it is clear that any order passed by the Court has to be effective. The parties before this Court i.e. the platforms are sufficiently capable to enforce an order of global blocking. Further, it is not disputed that the platforms are subject to in personam jurisdiction of this Court.’
>>>The latter element, again, may limit the authority of the judgment. I am not au fait with the ground for jurisdiction in the case at issue.
Finally, at 91: ‘The race between technology and the law could be termed as a hare and tortoise race – As technology gallops, the law tries to keep pace’. This does not imply the law simply laying down to have its belly rubbed. Exactly my sentiment in my post on the UK AI case.
(Handbook of) EU Private International Law, 2nd ed. 2016, Chapter 2, Heading 188.8.131.52, Heading 184.108.40.206.5
BNP Paribas v TeamBank: the CJEU on third-party effects of an assignment of a claim in the case of multiple assignments.
In C-548/18 BNP Paribas v TeamBank, the CJEU held on the issue whether the Rome I Regulation can be interpreted as determining the applicable law with regard to the third-party effects of an assignment of a claim in the case of multiple assignments, for the purpose of determining the holder of that claim.
The factual matrix is very recognisable: a debtor gets into debt with multiple creditors, and assigns each of them the attachable share of current and future claims to wages and salary, including in particular claims to pension benefits. One of the creditors, first to have been assigned, is a German bank (TeamBank). The employer was not told of the assignment. The second creditor is a Luxembourg bank that does inform the employer as they are bound to under Luxembourg law.
The Amtsgericht Saarbrücken (Germany) opens insolvency proceedings against the debtor. The appointed trustee in insolvency received, from the debtor’s employer in Luxembourg, a share of her salary, in the amount of EUR 13 901.64, and deposited that amount with the District Court. The trustee was uncertain as to the identity of the creditor of the said amount, each of the two parties to the main proceedings asserting preferential rights relating, in the case of TeamBank, to a claim of EUR 71 091.54 and, in the case of BNP, EUR 31 942.95. TeamBank and BNP brought, respectively, an action and a counterclaim before the Landgericht Saarbrücken, requesting the lifting of the lodgement in respect of the entire amount of EUR 13 901.64. That court upheld TeamBank’s action and dismissed BNP’s counterclaim.
Jurisdiction is not at issue, Article 26 Bru Ia applies.
Can Article 14 Rome I Regulation (see text below) be interpreted as determining the applicable law with regard to the third-party effects of an assignment of a claim in the case of multiple assignments, for the purpose of determining the holder of that claim? Or should its silence on same be interpreted as having been intentional (excluding such cover, leaving it to residual national conflicts rules).
The CJEU first of all observes that the wording of Article 14 of the Rome I Regulation does not refer to the third-party effects of an assignment of a claim.
Further, at 32, it reviews the context in which Article 14 Rome I is set. It refers to recital 38 which states that ‘matters prior to’ an assignment of a claim, such as a prior assignment of the same claim in the context of multiple assignments, despite the fact that they may represent a ‘property aspect’ of the assignment of the claim, do not fall within the concept of a ‘relationship’ between the assignor and the assignee within the meaning of Article 14(1) of that regulation. That recital specifies that the term ‘relationship’ should be strictly limited to those aspects which are directly relevant to the assignment in question.
(Note that recitals are qualified merely as context, therefore. Readers are aware that I often take issue with material conflict of laws rules being included in recitals of EU Regulations).
At 33, the CJEU further refers to the legislative history: the EC had proposed a rule re third-party effect however that rule did not make it into the final text, indeed the Commission per Article 27(2) Rome I was required to submit ‘a report on the question of the effectiveness of an assignment or subrogation of a claim against third parties’ and, if appropriate, ‘a proposal to amend the [Rome I Regulation] and an assessment of the impact of the provisions to be introduced’. That proposal materialised in 2018.
In conclusion, under EU law as it currently stands, the absence of rules of conflict expressly governing the third-party effects of assignments of claims is a choice of the EU legislature. Residual rules take over.
(Handbook of) EU Private International Law, 2nd ed 2016. Chapter 3.
Voluntary assignment and contractual subrogation
1. The relationship between assignor and assignee under a voluntary assignment or contractual subrogation of a claim against another person (the debtor) shall be governed by the law that applies to the contract between the assignor and assignee under this Regulation.
2. The law governing the assigned or subrogated claim shall determine its assignability, the relationship between the assignee and the debtor, the conditions under which the assignment or subrogation can be invoked against the debtor and whether the debtor’s obligations have been discharged.
3. The concept of assignment in this Article includes outright transfers of claims, transfers of claims by way of security and pledges or other security rights over claims.
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 220.127.116.11, Heading 18.104.22.168.5.
Starting with the infamous and fundamentally flawed Laws of Fear by Cass Sunstein, Europe’s precautionary principle has been under constant attack by industry both within and outside of the EU. My postings on the principle here and the section on it in my Handbook of EU environmental law with Leonie Reins attempt to show that despite industry propaganda against it, the principle has never been a blind ‘when in doubt, don’t do it’ approach to risk management.
In C-616/17 Blaise and others, the Court once again shows its measured approach. Defendants in national criminal proceedings, argued that they should be let off in a criminal damage prosecution. They are environmental activists and are charged with causing criminal damage to containers of herbicidal products (specifically ‘Roundup’) containing the chemical glyphosate. In their defence, they argue that the products present an unacceptable potential risk to human health and the environment and that the EU approval process is defective and therefore unlawful.
The Court found that the approval process on the basis of EU law is entirely in line with EU law, including the precautionary principle. Steptoe have excellent overview here and I am happy to refer entirely.
EU environmental law (with Leonie Reins), Edward Elgar, 2018, p.28 ff.
Salzburg-based Alpine Bau had been carrying out a considerable amount of roadwork engineering for the Polish State. The courts at Vienna started insolvency proceedings in 2013, appointing Mr Riel as what is now called the ‘insolvency practitioner’. Austria is the centre of main interests, the Austrian procedure the main proceedings. A little later a secondary proceeding is opened in Poland. Skarb Państwa, the Polish finance ministry or treasury, seeks in those proceedings the payment of debt it claims is outstanding vis-a-vis the Polish State. It also seizes the Austrian courts in a separate proceeding, asking it to confirm the existence of debt owed to it (the amount almost exactly the amount it specified in the Polish secondary proceedings) and at the same time a stay in its pronouncement until the Polish courts have ruled on the fate of the claim in Poland. Essentially therefore the Austrian action is a conservatory action, a hedging of the treasury’s bets.
An interesting angle is that in the Austrian proceedings the Treasury claims application of the Brussels Ia Regulation, particularly its Article 29 lis alibi pendens rule. The Austrian courts reject the existence of the debt and they do not entertain the lis alibi pendens request (the request for a stay).
The first question in C-47/18 (judgment 18 September) was whether Brussels Ia or the Insolvency Regulation are engaged. The CJEU (at 33) emphasises the need for both avoidance of overlap and of non-cover by either (‘doivent être interprétés de façon à éviter tout chevauchement entre les règles de droit que ces textes énoncent et tout vide juridique’), in the relation between the two Regulations: the infamous dovetail which as I have flagged in earlier posts, the Court in my view does not get entirely right. References are to Valach, Wiemer & Trachte, Feniks, Nickel & Goeldner). Here, the Treasury bases its action on Article 110 of the Austrian insolvency act (allowing, and urging first-tier creditors (such as, inevitably, Inland Revenue) to have their claims properly registered so as to ensure the priority in the picking order against the other creditors). The claim therefore is subject to the Insolvency Regulation 1346/2000.
The Court subsequently and unsurprisingly holds that Brussels Ia’s lis alibi pendens rule cannot somehow apply deus ex machina. At 43: insolvency is excluded from the Regulation; this exclusion is all or nothing: if the Regulation does not apply, none of it applies, including its procedural rules. These have, in BIa context, the clear purpose of ruling out as much as possible procedures pending in more than one Member State on the same issue. The Insolvency Regulation, by contrast, allows for concurrent proceedings, albeit primary and secondary ones, and (in Article 31 of the old Regulation; tightened in the current version 2015/848) encourages co-operation and exchange of information to avoid irreconcilable judgments.
(The further question asked refers to debt documentation requirements).
Handbook of) EU private international law, 2nd ed. 2016, Chapter 5 Heading 5.4.1. Chapter 2 Heading 22.214.171.124.1