Posts Tagged ECJ

Salvoni v Fiermonte. CJEU confirms quasi-notarial nature of Brussels Ia’s Article 53 certificate, other than for provisional measures. Consumer protection cannot be raised at that stage. Also rejects interpretative force of substantive consumer law rules for jurisdictional issues.

I reviewed Bobek AG Opinion in Case C-347/18 Salvoni v Fiermonte earlier. The referring court enquires whether the court of origin tasked with issuing the Article 53 Certificate (issued with a view to enabling swift recognition and enforcement) may, of its own motion, seek to ascertain whether the judgment whose enforcement is sought was issued in breach of the rules on jurisdiction over consumer contracts, so that it may, where appropriate, inform the consumer of any such breach and enable her to consider the possibility of opposing enforcement of the judgment in the Member State addressed.

The CJEU has entirely confirmed the AG’s Opinion (no English version at the time of posting): no such second-guessing of jurisdiction.

At 34 ff the Court points out an important distinction with certificates issued with a view to enforcing provisional measures: there, the court issuing the certificate does carry out jurisdictional review (whether the court ordering the measures  has jurisdiction as to the substance of the case).

At 40 ff the Court also confirms that substantive consumer protection laws (such as Directive 93/13) do not transfer to the procedural /jurisdictional rules of Brussels Ia: an important conclusion overall.

Geert.

(Handbook of) European private international law, 2nd ed. 2016, Chapter 2, Heading 2.2.8.2, Heading 2.2.16.

 

, , , , , , , , , , , , , , , ,

Leave a comment

CJEU confirms ‘targeting’ as a jurisdictional trigger for EU trademark infringement in AMS Neve.

Update 11 September 2019 Tobias Lutzi has excellent additional analysis hereUpdate 19 September 2019 Esther Noske has interesting German case-law background here and CDC are I bit more excited about the pioneering aspect of the case than I am, here – that is probably because I am not a pur sang intellectual property lawyer.

The CJEU today has held in C‑172/18 AMS Neve, confirming Szpunar AG’s Opinion which I briefly reviewed earlier. Eleonora Rosati has excellent analysis here and I am happy to refer entirely. As I note in my handbook, ‘targeting’, ‘directed at’ and ‘business models’ are a variety of jurisdictional triggers across EU law. The lack of uniform terminology does not assist the unsuspected reader or practitioner.

Geert.

(Handbook of) EU private international law, 2nd ed. 2016, Heading 2.2.8.2.5; Heading 2.2.11.2.4 (quoted by the AG in his Opinion).

, , , , , , , , , , , , , ,

1 Comment

Supreme v Shape: Lifting attachments (‘garnishments’) on assets of international organisations in another state. Dutch Supreme Court refers to CJEU re exclusive jurisdiction, and the impact of claimed immunity.

Many thanks Sofja Goldstein for alerting me a while back to the Hoge Raad’s decision to refer to the CJEU and what is now known to be Case C-186/19. The case concerns SHAPE’s appeal to a Dutch Court to lift the attachment aka ‘garnishment’ of a Belgian NATO /SHAPE escrow account by Supreme Services GmbH, a supplier of fuel to NATO troops in Afghanistan. As Sofja reports, in 2013, Supreme and Allied Joint Force Command Brunssum (JFCB), the Netherlands-based regional headquarters of NATO, set up an escrow bank account in Belgium with the goal of offsetting any contingent liabilities on both sides at the end of Basic Ordering Agreements (BOAs). Supreme Services in 2015 initiated proceedings against SHAPE and JFCB in the Netherlands arguing that the latter parties had not fulfilled their payment obligations towards Supreme. It also attached the account in Belgium.

SHAPE and JFCB from their side seized the Dutch courts for interim relief, seeking (i) to lift the attachment, and (ii) to prohibit Supreme from attaching the escrow account in the future.

The Supreme Court acknowledges the Dutch Courts’ principle jurisdiction at the early stages of the procedure on the basis of Article 35’s rule concerning provisional measures, yet at this further stage of the proceedings now feels duty-bound firstly under Article 27 of Brussels Ia to consider whether Article 24 paragraph 5 applies (Belgium being the place of enforcement of any attachment should it be upheld); further and principally, whether the Brussels I a Regulation applies at all given that SHAPE and NATO invoke their immunity (it is in my view unlikely that the invocation or not of an immunity defence may determine the triggering or not of Brussels Ia), this immunity interestingly being the result of a Treaty not between The Netherlands and NATO but rather resulting from the headquarter agreement between NATO and Belgium.

An interesting example of public /private international law overlap.

Geert.

 

 

 

, , , , , , , , , , , , , , , , , , , ,

Leave a comment

R v P: Szpunar AG confirms the absence of a general forum non conveniens rule in EU law.

Update 5 September 2019. The CJEU today has confirmed. See at 44 for the forum non issue.

Szpunar AG Opined in C-468/18 R v P that in the absence of formal provisions to that effect, the Maintenance Regulation 4/2009 cannot be interpreted to include a forum non conveniens rule.

The referring court is asking, in essence, whether Article 3(a) and Article 5 of Regulation 4/2009 must be interpreted as meaning that they preclude a court of a Member State with jurisdiction to hear an action relating to a maintenance obligation brought against a defendant who is habitually resident in that Member State or who has entered an appearance before that court from declining to exercise that jurisdiction on the grounds that such a claim is ancillary to a claim relating to parental responsibility, within the meaning of Article 3(d) of that regulation, and that the court with jurisdiction to hear the latter claim would be better placed, having regard to the best interests of the child, to adjudicate on those claims.

The Court’s first Advocate-General clearly and succinctly lays out the relevant principles and reference is best made to the Opinion. It is particularly at 83, including in relevant footnote, that he points out the consequences of the EU’s approach to distribution of jurisdiction: unless a Regulation (such as in Brussels IIa; or now also Brussels Ia) includes a forum non rule, forum non must not apply.

Geert.

 

 

, , , , , , , , ,

Leave a comment

Tibor v DAF: CJEU confirms markets affected by cartel as locus damni for end-users.

In C-451/18 Tibor v DAF Trucks the CJEU has confirmed its CDC case-law on locus damni for end-users affected by a cartel. Truck distribution arrangements were such that Tibor (of Hungary) could not buy directly from DAF Trucks NV (of The Netherlands), one of the truck manufacturers held by the EC to have infringed Article 101 TFEU. Rather, it had to go via local Hungarian dealers (and leasing companies).

Tibor-Trans claims that the Hungarian courts derive their international jurisdiction from Article 7(2) Brussels Ia per CDC according to which, in the case of an action for damages brought against defendants domiciled in various Member States as a result of a single and continuous infringement of Article 101 TFEU and of Article 53 of the EEA Agreement, which has been established by the Commission, in which the defendants participated in several Member States, at different times and in different places, each alleged victim can choose to bring an action before the courts of the place where its own registered office is located.

DAF Trucks submits, first, that the collusive meetings (hence the locus delicti commissi) took place in Germany, which should entail the jurisdiction of the German courts and, second, that it never entered into a direct contractual relationship with Tibor-Trans, with the result that it could not reasonably expect to be sued in the Hungarian courts.

The Court dismisses the latter argument: those infringing competition law must expect to be sued in markets affected by anti-competitive behaviour (at 34, with reference to fly-LAL). That Tibor did not have a contractual relation with DAF Trucks is irrelevant as the increase in price clearly has been passed on by the frontline victims of the cartel: the dealers (at 31).

The case does leave open the unresolved issue of the CJEU’s identification of registered office as locus damni (see my comments in my review of CDC). Given that Tibor Trans would seem to have purchased all its trucks in Hungary, neither does not the judgment shed light on the distributive impact of locus damni or my suggestion that for competition law, markets where the anti-competitive behaviour is rolled-out should qualify as locus delicti commissi (alongside the place of the meetings where infringement of competition law is decided).

Geert.

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

, , , , , , , , , , , , , , , ,

Leave a comment

Dinant Bar v maître JN. Bar membership fees. Saugmansdgaard ØE on whether they are at all ‘civil and commercial’ and if so, whether they are ‘contractual’.

In C-421/18 Saugmansdgaard ØE opined (Opinion a yet available in a handful of languages only, not including English) on the issue of ‘civil and commercial’ (last reviewed by the Court in Buak) and ‘contract’ (within Article 7(1) Brussels Ia.

At issue was the relationship between a France-domiciled practising lawyer, registered with the Dinant (Belgium) Bar, and that Bar. Maître JN, now a very occasional practitioner it seems, had been refusing to pay his Bar Membership fees even after the Bar council had reduced them to the level of insurance premiums paid by it to the insurance company running the collective professional insurance scheme.

The referring court at Namur had not in fact asked the CJEU about the interpretation of ‘civil and commercial’. It was the EC’s comments which triggered Saugmansdgaard ØE’s review of that issue (albeit he insists the final call is up to the referring court). He refers to the public interest duties carried out by the Bar Council (in particular, ensuring the public’s trust in the proper representation before the judicial authorities), and the authority entrusted to the Council by Belgian’s code of civil procedure (particularly at 34). At 35 ff he then considers whether in its collection of the Bar fees set by and due to it by the registered lawyers, the Council acts in the exercise of that authority, and decides it does not: the fees are determined by the general council of the Bar and in the main represent the professional insurance fees.  That is all the more made clear by the fact that in the case of maître JN the Bar had reduced the fees to the exact amount paid to the insurance company.

The dispute therefore he advices is about pennies, not power.

Turning to the issue of ‘contract’ reference is made ia to the recent CJEU decision in Kerr. Particularly at 81 ff the Advocate General emphasises the specificities of the case: the solicitor in question had effectively retired yet chose to continue to pay Bar membership fees. In contrast to for instance Austro-Mecana and more in line with Kerr (and in contrast also one could argue with fully practising lawyers) the voluntary character of the relationship is core.

Geert.

 

, , , , , , , , , , ,

Leave a comment

%d bloggers like this: