Posts Tagged CJEU

Tronex. Circular economy, reverse logistics qualifying as wastes return to the CJEU. Kokott AG suggests a duty of prompt inspection.

Kokott AG Opined in C-624/17 OM v Tronex end of February (I had flagged the case summarily earlier): whether consumer returns of electrical appliances some of which are no longer usable because defective, and residual stock are to be regarded as waste that may be exported only in accordance with the Waste Shipment Regulation. – Reminiscent of the issues in Shell: in that case in a B2B context.

Tronex’ export consignment that was stopped, consisted of appliances which had been returned by consumers under a product guarantee, on the one hand, and goods which, because of a change to the product range, for example, were or could no longer be sold (normally), on the other. A number of the boxes in which the appliances were packaged carried a notice stating their defects. The glass in some of the glass kettles was damaged. The shipment was to take place without notification or consent in accordance with the Waste Shipment Regulation.

The AG takes a sensible approach which distinguishes between consumer and collector. At 31 ff: The mere fact that objects have been collected for the purpose of reuse does not in itself necessarily support the assumption that they have been discarded. Indeed, it seems sensible, both economically and from the point of view of the efficient use of resources, to make appliances which can no longer be sold on the market for which they were originally intended available on other markets where they may still sell. Particularly in the case of residual stock which is still in its unopened original packaging, therefore, the request for a preliminary reference contains insufficient evidence to support the conclusion that there has been any discarding.

Returned appliances which, on account of serious defects, are no longer usable and can no longer be repaired at reasonable cost, on the other hand, must unquestionably be regarded as waste. Kokott AG suggests waste classification as the default position. At 39: in so far as there are doubts as to the reuse of the goods or substance in question being not a mere possibility but a certainty, without the necessity of using any of the waste recovery processes referred to in the Waste Directive prior to reuse, only the possibility of ‘prompt’ dispelling of the doubt by an inspection of the appliances, can shift the presumption of it being waste.

‘Repair’ is what the AG proposes as the distinctive criterion: at 40: if the inspection shows that the item is still capable of functional use, its status as waste is precluded. The same is true of goods with minor defects which limit functionality only negligibly, meaning that these goods can still be sold without repair, in some cases at a reduced price. At 41: ‘In so far as the inspection identifies defects which need to be repaired before the product is capable of functional use, however, that product constitutes waste, since there is no certainty that the retailer will actually carry out the repair. Whether the repair is less or more expensive cannot be decisive in this regard, since a product that does not work constitutes a burden and its intended use is in doubt.’ The same goes for goods (other than those in the original packaging, per above) which have not been inspected at all.

At 45 ff the AG supports this conclusion with reference to instruction in Annexes to the WEEE Directive. She also suggests that her interpretation, given the criminal law implications, be limited to those instances occurring after the eventual CJEU judgment.

Geert.

(Handbook of) EU Waste law, 2nd ed. 2015, Oxford, OUP, Chapter 1, 1.149 ff.

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Notaries, national certificates of succession and the concept of ‘court’. Bot AG in WB.

Case C-658/17 WB is one of the first in which the annoying new rule on anonymisation at the CJEU kicks in. At issue is the characterisation of notaries as ‘court’ under the EU succession Regulation 650/2012.

Particularly with regard to succession law, notaries in the Member States carry out tasks which can be considered ‘judicial’. In some jurisdictions (especially in the Anglo-Saxon world) a court is involved in transferring the estate from the deceased to those inheriting. This is not the case in most Member States with a so-called ‘Latin’ office of notary. A private international law regulation concerning inheritance can therefore not solely be aimed at courts in the traditional sense of the word. In particular, notaries and registry offices, but also testamentary executors entrusted with judicial authority, need to be integrated.

The rules with regard to jurisdiction and applicable law included in the Regulation have to be complied with by all above-mentioned legal professions, though only to the extent that they exercise judicial functions. The Regulation therefore adopts, in Article 3(2), a functional approach of a ‘court’:

For the purposes of this Regulation, the term ‘court’ means any judicial authority and all other authorities and legal professionals with competence in matters of succession which exercise judicial functions or act pursuant to a delegation of power by a judicial authority or act under the control of a judicial authority, provided that such other authorities and legal professionals offer guarantees with regard to impartiality and the right of all parties to be heard and provided that their decisions under the law of the Member State in which they operate:

(a)     may be made the subject of an appeal to or review by a judicial authority; and

(b)    have a similar force and effect as a decision of a judicial authority on the same matter.

The Member States shall notify the Commission of the other authorities and legal professionals referred to in the first subparagraph in accordance with Article 79.

Outside of the exercise of judicial functions, notaries are not bound by the rules on jurisdiction, and the authentic instruments they issue circulate in accordance with the provisions on authentic instruments rather than ‘judgments’.

In accordance with Article 79 of the Regulation, the Commission (on the basis of notifications by the Member States) has established a list of the authorities and legal professions which need to be considered as ‘courts’ in accordance with this functional determination. This list will also be particularly interesting for internal national use.

However I have always emphasised to Member States compiling their lists, that unlike in the Insolvency Regulation, where the extent of cover of national proceedings is entirely in the hands of the Member States, for the Succession Regulation it is an autonomous EU  definition which drives cover by the Regulation.

Bot AG agrees (Opinion of 28 February; not available in English). whether or not a particular office and /or function is included in the national notification is not determinant. An EU definition of Court kicks in. He refers in particular to his overview in C-484/15 Zulfikarpašić. Reference is also made to Pula Parking. Applied to the case at issue, Polish notaries by virtue of Polish law may only issue the Polish (not: EU) certificate of succession if there is consensus among the parties and no disagreement e.g. re jurisdiction. No judicial functions therefore and the certificate travels as an authentic instrument, not a judgment.

Geert.

(Handbook of) EU Private International Law, 2nd ed. 2016, Chapter 6, Heading 6.2.1.

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BUAK. The concept of ‘court’ (Article 267 TFEU), ‘civil and commercial’, and the social security exception in the Brussels I Recast.

I reported on Bot AG’s Opinion in  Case C-579/17 BUAK (Bauarbeiter-Urlaubs- u. Abfertigungskasse v Gradbeništvo Korana d.o.o.) here. He focussed on admissibility viz the preliminary review procedure. He left the questions on ‘civil and commercial’, and the social security exception unanswered, suggesting these are now acte claire. The Court at the end of February did answer all questions. (For completeness sake I already note that for the latter, the CJEU referred to secondary EU law to find the payment not to be one in social security).

First, on the issue of admissibility under Article 267 TFEU. In the absence of discussion by the original court on the applicability of Brussels Ia, by determining whether it is competent to issue the certificate under Article 53 Brussels Ia (replacing exequatur), the court of origin implicitly confirms that the judgment given in default which must be recognised and enforced in another Member State falls within the scope of application of that Regulation: for evidently the issue of the certificate is possible only on that condition. That procedure in those circumstances is judicial in character, with the result that a national court ruling in the context of such a procedure is entitled to refer questions to the Court for a preliminary ruling. (But only in those circumstances: for otherwise the issuing of the certificate becomes a potential anchor for stalling quick enforcement, via preliminary review to Luxembourg).

Next, on the issue of ‘civil and commercial’, some usual suspects are discussed including in particular Pula Parking. flyLAL, and Sapir (but not Fahnenbrock or Kuhn). What needs to be examined, is firstly the legal relationship between the parties to the dispute and secondly the basis and the detailed rules governing the bringing of the action.

As to the former, BUAK may be governed by public law however its calculations of wage supplements and annual leave, the formula for which is determined by decree, are superimposed upon wage negotiations which employers either negotiate entirely freely with employees or agree so on the basis of collective agreements between employers and employees to which employers freely consent. And at 54: ‘in so far as the employer’s obligation to pay the wage supplements is intrinsically linked with the rights, which are of a civil nature, of workers to annual leave pay, …BUAK’s claim and, therefore, an action for payment of that claim, is also of a civil nature.’ (Note that Eurocontrol, not too dissimilar in context (here too the root cause of the debt incurred is one of free will: whether to use certain airspace and airports or not), did lead to a finding of non-civil and commercial matters). I do not find this application straightforward at all; ‘the parties’ are the employer (Korana, a Slovenian company which had posted workers to Austria) and BUAK. Their legal relationship is removed from the contract and /or collective agreements negotiations.

As for the second criterion, the basis and the detailed rules governing the bringing of the action, unlike purely internal situations, in which BUAK may itself issue an execution title in the form of a statement of arrears, with respect to arrears relating to posted workers who do not have their habitual place of work in Austria it must initiate legal proceedings for the payment of unpaid wage supplements. However there is divergence of views between the referring court and Austria and the EC before the CJEU: the former maintains that its hands are tied and that it cannot pursue a de novo review of the application by BUAC; the latter suggest the court seized does carry out a full review of all of the elements of the application. The CJEU at 60 would seem to lean on the side of the referring court but leaves it to take the final decision.

I will turn to this again when I work on the third edition of the handbook this summer yet it is clear that the formula for deciding civil and commercial is still not entirely settled. The First chamber issued Fahnenbrock (Tizzano (Rapporteur), Rodin, Levits, Berger and Biltgen), and Kuhn (Silva de Lapuerta (Rapporteur), Bonichot, Regan, Fernlund and Rodin; the latter the only common denominator in both), which are arguably more like the Lechoritou formula, which in turn applies Eurcontrol: exclusion of certain legal actions and judicial decisions from the scope of Regulation No 1215/2012, by reason either of the legal relationships between the parties to the action or of the subject matter of the action.

The Second chamber (K. Lenaerts, A. Prechal, Toader, Rosas and Ilešič; quite a few conflicts scholars indeed including the President of the CJEU) now focuses on Sapir which was issued by the third Chamber, comprising at the time Toader (Rapporteur), Ilešič, Jarašiūnas, Ó Caoimh,  Fernlund. Toader and Ilešič are the common denominator with current judment in BUAK). Sapir has focus also firstly on the legal relationship between the parties to the dispute, but secondly the basis and the detailed rules governing the bringing of the action (not: the to my knowledge never applied criterion of ‘subject matter’ of the action).

To ponder over the summer.

Geert.

(Handbook of) EU private international law, 2nd ed. 2016, Chapter 2, Heading 2.2.16.1.1.

 

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TPS-NOLO (Geobal): CJEU on take-back of ‘waste’, relation with REACH.

As I discussed with Stephen Gardner in Bloomberg Environment, the CJEU held yesterday in C-399/17 EC v Czech Republic, where the question is whether the Czech Republic has infringed the waste shipments Regulation 1013/2006 by refusing to take back a substance known as TPS-NOLO (or Geobal) that had been shipped to Poland without respecting the requisite formalities of the Waste Shipment Regulation.

Approximately 20 000 tonnes of TPS-NOLO (Geobal) and composed of tar acid, a remnant after refining oil (code 05 01 07* of the European waste catalogue), of carbon dust and of calcium oxide. Poland considered the substance to be hazardous waste classified in Annex IV to the Waste Shipment Regulation (‘Waste tarry residues (excluding asphalt cements) arising from refining, distillation and any pyrolitic treatment of organic materials’).  The Czech citizen responsible for the shipment to Poland presented the standards adopted by the company as well as proof that the substance in question was registered under the REACH Regulation and that it was used as fuel.

Wahl AG had suggested inadmissability, as I discuss here. The Court however disagreed, and on substance dismissed the EC action in five steps summarised very well in its case-summary. Of note in particular with respect to the REACH /WFD relation is that the Court holds that while the EC is right in being sceptical about WFD evasion via REACH (not that straightforward an assumption, given the cumbersome implications of REACH compliance), the Commission needs to bring specific evidence to the table rather than mere speculation.

Not an earth-shattering case yet a relevant one also with a view to circular economy debates, where REACH’ data requirements are an important concern for recyclers.

Geert.

Handbook of EU Waste law, 2nd ed. 2015, OUP, i.a.at para 1.201.

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Disciplining abuse of anchor defendants in follow-up competition law cases exceedingly difficult. Borgarting Court of Appeal (Norway) applies CDC in Posten /Bring v Volvo.

After the French Cour de Cassation in MJI v Apple Sales, the Brussels Court of Appeal in FIFA/UEFA, and the Court at Amsterdam in Kemira, (as well as other courts undoubtedly, too; and I have highlighted more cases on the blog), Ørjan Salvesen Haukaas has now reported an application of CDC in a decision of December 2018 by a Norwegian Court of appeal, LB-2018-136341 Posten /Bring v Volvo. The court evidently applies Lugano (Article 6), not Brussels Ia, yet the provision  is materially identical.

Norwegian and foreign companies in the Posten/Bring group (mail services) had sued companies in the Volvo group for alleged losses incurred when purchasing trucks from Volvo after certain companies in the Volvo group had been fined for participating in a price-fixing cartel. Posten/Bring also sued a Norwegian company in the Volvo group, which had not been fined for participating in the price-fixing cartel.

Borgarting Court of Appeal held that Norwegian courts have jurisdiction pursuant to Article 6(1) Lugano even if the anchor defendant is sued merely to obtain Norwegian jurisdiction. The court solely had to determine whether the claims were so closely connected that there was a risk of irreconcilable judgments, in the absence of any suggested collusion between the anchor defendant and claimants per CDC.

Geert.

(Handbook of) European Private International Law. 2nd ed. 2016, Chapter 2, Heading 2.2.12, Heading 2.2.12.1.

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Milivojević v Raiffeisenbank: Free movement of services yet also protected categories and rights in rem /personam.

The CJEU held in C-630/17 Milivojević v Raiffeisenbank on 14 February. The case in the main concerns Croatian legislation restricting financial services with Banks other than Croatian ones – a free movement of services issue therefore which the CJEU itself explains in its press release.

Of relevance to the blog is the issue of jurisdiction under the consumer title and Article 24(1)’s exclusive jurisdictional rule.

The Croatian legislation at issue, in the context of disputes concerning credit agreements featuring international elements, allows debtors to bring an action against non-authorised lenders either before the courts of the State on the territory of which those lenders have their registered office, or before the courts of the place where the debtors have their domicile or registered office and restricts jurisdiction to hear actions brought by those creditors against their debtors only to courts of the State on the territory of which those debtors have their domicile, whether the debtors are consumers or professionals.

Croatian law therefore first of all infringes Article 25(4) juncto Article 19 Brussels Ia. Their combined application does not rule out choice of court even between a business and a consumer (subject to limitations which I do not discuss here). It moreover infringes Article 25 (and Article 4) in and of itself for it precludes choice of court even in a B2B context.

Next, may a debtor who has entered into a credit agreement in order to have renovation work carried out in an immovable property which is his domicile with the intention, in particular, of providing tourist accommodation services be regarded as a ‘consumer’ within the meaning of Article 17(1) Brussels Ia? Reference is made ex multi to Schrems, emphasising the difficult balancing exercise of keeping exceptions to Article 4’s actor sequitur forum rei rule within limits, yet at the same time honouring the protective intention of the protected categories.

A person who concludes a contract for a dual purpose, partly for use in his professional activity and partly for private matters, can rely on those provisions only if the link between the contract and the trade or profession of the person concerned was so slight as to be marginal and, therefore, had only a negligible role in the context of the transaction in respect of which the contract was concluded, considered in its entirety (per Schrems following C-464/01 Gruber). Whether Ms Milivojević can so be described as a ‘consumer’ is for the national court to ascertain.

Finally, does Article 24(1)’s rule on an action ‘relating to rights in rem in immovable property’, apply to an action for a declaration of the invalidity of a credit agreement and of the notarised deed relating to the creation of a mortgage taken out as a guarantee for the debt arising out of that agreement and for the removal from the land register of the mortgage on a building?

Reference here is made to all the classics, taking Schmidt v Schmidt as the most recent portal to earlier case-law. At 101: with regard to the claims seeking a declaration of the invalidity of the agreement at issue and of the notarised deed related to the creation of a mortgage, these ‘clearly’ (I assume based on the national law at issue) are based on a right in personam which can be claimed only against the defendant.

However at 102: re the request for removal from the land register of the registration of a mortgage, it must be noted that the mortgage, once duly constituted in accordance with the procedural and substantive rules laid down by the relevant national legislation (see indeed my comment above re passerelle of national law), is a right in rem which has effects erga omnes. Such an application does fall within Article 24(1). At 104 the Court again inadvertently or not highlights the potential for a procedural strategy, opening up forum connexitatis hinging unto A24(1) exclusivity: ‘in the light of that exclusive jurisdiction of the court of the Member State in which the immovable property is situated to the request for removal from the land register for the registration of mortgages, that court also has a non-exclusive jurisdiction based on related actions, pursuant to Article 8(4) of Regulation No 1215/2012, to hear claims seeking annulment of the credit agreement and the notarised deed related to the creation of that mortgage, to the extent that these claims are brought against the same defendant and are capable, as is apparent from the material in the file available to the Court, of being joined.’ (idem in Schmidt v Schmidt).

Geert.

(Handbook of) European Private International Law, 2nd ed. 2016, Chapter 2, Heading 2.2.6, Heading 2.2.8.2.

 

 

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Martins v Dekra Claims. Limitation periods as ‘overriding mandatory rules’ under Rome II.

Case C‑149/18 Martins v Dekra Claims gave the Court of Justice an opportunity (it held end of January) essentially to confirm its Unamar case-law, specifically with respect to limitation periods.

The Portuguese claimant’s vehicle was damaged in an accident in Spain in August 2015. He issued proceedings in Portugal in November 2016 to recover his uninsured losses. Under Portuguese law, the lex fori, the limitation period is 3 years. Under Spanish law, the lex causae per Rome II, limitation is fixed at 1 year.

The Court first of all re-emphasises the importance of co-ordinated interpretation of Rome I and II, here with respect to the terminology of the two Regulations which in the French version in particular differs with respect to the use of the term ‘lois de police’ (Article 9 Rome I) and ‘dispositions impératives dérogatoires’  (Article 16 Rome II). The lois de police of Rome I (albeit with respect to the Rome Convention 1980) had already been interpreted in Unamar, leading to the first of the two conditions discussed below.

The Court effectively held there is little limit content-wise to the possibility for courts to invoke the lois de police /overriding mandatory law provision of Article 9 Rome II. Despite Article 15 Rome II verbatim mentioning limitation periods as being covered by the lex causae (but see the confusion on that reported in my post on Kik this week), limitation periods foreseen in the lex fori may be given priority.

This is subject to two conditions:

firstly, the national court cannot interpret any odd lex fori provision as being covered by the lois de police exception: here the Court re-emphasises the Rome I /II parallel by making the Unamar test apply to Rome II: at 31: ‘the referring court must find, on the basis of a detailed analysis of the wording, general scheme, objectives and the context in which that provision was adopted, that it is of such importance in the national legal order that it justifies a departure from the applicable law.’ Here, the fact that limitation periods are mentioned in so many words in Article 15, comes into play: at 34: given that express reference, the application of the overriding mandatory law exception ‘would require the identification of particularly important reasons, such as a manifest infringement of the right to an effective remedy and to effective judicial protection arising from the application of the law designated as applicable pursuant to Article 4 of the Rome II Regulation.’

secondly, and of course redundantly but worth re-emphasising: the rule at issue must not have been harmonised by secondary EU law. As Alistair Kinley points out, the Motor Insurance Directive (MID) 2009/103 is currently being amended and a limitation period of minimum 4 years is being suggested – subject even to gold plating. That latter prospect of course opens up all sorts of interesting discussions particularly viz Article 3(4) Rome I.

Geert.

(Handbook of) European Private International Law, 2nd ed. 2016, Chapter 3, Heading 3.2.8, Heading 3.2.8.3.

 

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