Update 31 January 2020 on Brexit day, see here and here for a recent overview of the issues, here for Michiel Poesen’s 2017 overview and here for the EFTA States Declaration on the UK joining Lugano 2007.
Update 11 December 2018 there could have been many more updates I could have inserted in between – see e.g.
- the conflicts provisions in the draft Withdrawal Agreement
- Articles 66 to 69. Specifically, for civil and commercial matters:
- Legal proceedings “instituted before the end of the transition period” will continue to be subject to Brussels I Recast on jurisdiction in civil and commercial matters.
- Its recognition and enforcement proceedings will continue to apply to “judgments given in legal proceedings instituted before the end of the transition period”.
- Provided that the relevant EEO Certificate was applied for before the end of the transition period, the European Enforcement Order Regulation (uncontested claims) will also continue to apply
- Rome I Regulation shall apply in the UK in respect of contracts concluded before the end of the transition period (31 December 2020)
- Rome II Regulation shall apply in the UK in respect of events giving rise to damage, where such events occurred before the end of the transition period.
- (Both Regulations continued to be applied by the other MSs post the transition period, given principle of universal application)
- today the UK provisions for Rome I, II, and the Rome Convention post Brexit, as well as Diana Wallis MEP (rtd) on some of the implications for the victims of car accidents.
Update 21 April 2017 many thanks to Gordon Nardell QC for alerting me to the Bar Council’s Brexit papers which includes one on jurisdiction and enforcement.
The House of Commons’ report on ‘negotiating priorities for the justice system’ reviews more than conflict of laws, indeed it is a tour d’horizon of most (if not all) issues relevant to Justice and Home Affairs in the EU. Martha Requejo makes a number of valid points on the report and indeed plenty of these, and others, have been made by a number of conflicts commentators: I will not review all here. There is a scholarly cottage industry on post-Brexit issues and the area of private international law is no exception.
The report mentions among others that a role for the CJEU in respect of essentially procedural legislation concerning jurisdiction, applicable law, and the recognition and enforcement of judgments, is a price worth paying to maintain the effective cross-border tools of justice discussed throughout our earlier recommendations. That is a very sensible approach, not just within the overall context of UK /continent judicial co-operation: it is also an obvious lifeline for London’s legal services market. Without proper integration into the EU’s civil procedure corpus, judgments from UK courts will immediately lose a lot of their appeal. The Government however have manoeuvred itself into a cul-de-sac by rejecting a role for the European Court of Justice post Brexit. The report’s call, and many with it, therefore is likely to fall upon deaf ears. Both for the UK and for EU conflicts rules, this will be a great loss. Few continental courts live up to the same standards as their UK counterparts when it comes to applying the intricate detail of conflict of laws, whether EU based or not.
I have previously referred to the display ban case which Philip Morris took to the EFTA Court. I have only just recently stumbled across the eventual holding of the court which had referred the case to Luxembourg. (The Norwegian court held a year after EFTA’s judgment). Not GAVClaw style to report close to 2 years after date of issue: blame the inadequate (read lack of) system by which EFTA and indeed EU Member States report back on their eventual findings in preliminary review.
The District Court had been instructed by the EFTA Court to review whether the display ban actually affects the sale of domestic products and sale of goods from other EEA States equally. If there is de facto equal treatment, the law surfs on Keck & Mithouard’s exception for ‘selling arrangements’: no infringement of the core prohibition on quantitative restrictions to trade in the first place. (See Alberto Alemanno’s analysis of the EFTA ruling for background).
The national court suggested that the EFTA Court had not been entirely clear on how that test had to be constructed: not at any rate, it held, as a market hindrance test: i.e. that new products’ chances of entering the Norwegian tobacco market should be decisive for the question of whether a restriction exists. It referred inter alia (at p.35 of the copy referred to above) to the fact that the Norwegian Government in its submission to the EFTA Court had suggested that even though such hindrance for new products at the time did not actually exist, it could be expected indeed hoped that this would be the case. The District Court held that in the light of this acknowledgement by the Government, had the EFTA Court found this problematic, it would and should have said so explicitly. (This in some ways might be seen as a risk for the EFTA Court’s tradition, in line with the ECJ’s approach, to practice judicial economy).
The District Court in the end decided to continue the case on the basis of whether national products have a more favourable position due to local habits and customs linked to tobacco use (at p.35): the burden of proof whether the ban actually and not just potentially affects the marketing of imported tobacco products differently than domestic tobacco products lies with PMI, the Court held. That, it said, was not established with clarity: the de facto discriminatory effect of the display ban was found to be too uncertain to be considered a trade barrier.
The Court then somewhat inconsistently (do Norwegian courts practice wide obiter?) did review suitability and proportionality (not needed if Keck & Mithouard applied). Here, without naming the precautionary principle, the Court applies an important consequence often associated with it: the reversal of burden of proof. The Court essentially wanted PMI to show clear evidence for the display ban not being suitable for restricting the consumption of tobacco in Norway, at any rate in the long term (p.48). The Court essentially relies on previous case-law on tobacco advertising and equates suitability of the display ban with relevant studies and case-law on advertising restrictions. This was bound to (although the court took some length to establish it) lead to a finding of suitability.
Finally, as for proportionality proper, the court (with cross-reference i.a. on the effect of these bans elsewhere) did not find less trade restrictive alternatives (within the context of access to information or branding at point of sale).
This judgment just has to be staple fodder for risk classes and the interaction between risk analysis and trade law.
The New York State Supreme Court, in what I understand to be a decision of the interlocutory type and subject to appeal, has held as unconstitutional (vis-a-vis the NY Constitution, that is) the NY City Board of Health’s decision to limit the size of sugary soft drinks or ‘sodas’ sold in restaurants, movie theaters, stadiums and arenas at 16 ounces a cup. That’s 473 millilitres, slightly less than half a litre (500 millilitres or 50 cl) or roughly 100 ml less than what in the UK would be a pint (568 ml). 473 millilitres therefore would be the new maximum size – I have no experience with the current standard size however I understand that by default it must be much bigger than what is now being proposed. I remember some years back reading about a lawsuit in the US against Chrysler, whose new Voyager people carrier had cup holders which could not hold a one litre soda cup (one assumes this was a suit of the rather desperate type however one never knows).
Justice Milton Tingling essentially held that the Board’s decision trespasses on the powers of the legislative body, the City Council. Separation of powers, therefore, or Agency /delegation of powers, has decided this first shot in the soda war. Justice Tingling mentioned specifically that the judgment is not about the obesity epidemic, if any, and /or the contribution of soda drinks to same (he does remark that infringement of the separation of powers ‘(…) has the potential to be more troubling than sugar sweetened beverages’).
How far a State should go in regulating the unhealthy habits of its citisens is very much of the essence in this case – as is the importance for New York to somehow establish the link between practices targeted, and unwanted consequences on people’s health, the national health service, and the public purse. In the EU, this would create interesting musing under the precautionary principle (see also EFTA’s widely criticised Philip Morris judgment, which I have previously referred to). Appeal has already been announced.