Posts Tagged European Court of Justice

Non multa, sed multum. Sovereign debt litigation in Kuhn leads to surprising final (?) curtain in Vienna.

In C-308/17 Leo Kuhn the CJEU held that Brussels Ia was not engaged for the matter is acta iure imperii. I suggested in my review of the judgment that in solely emphasising context, the Court casts the net too wide. I also emphasised that Greece’s sovereign immunity defense, lonely an argument as it may be, is a strong argument (I referred to the German approach to same): non multa sed multum.

Thank you Stephan Walter for alerting us to, and analysing the final judgment in Vienna: Greece enjoys immunity; and even if it had not (this is how I understand Stephan’s analysis – I trust he will correct me should I be wrong), the court would have declined jurisdiction given that the ‘assets held in Austria’ head of jurisdiction, was not mentioned in the particulars of claim.

Stephan clearly is not happy with the judgment: the Supreme Court not only reverses its earlier stance on immunity; it also could be argued it should be estopped as it were (my words, not Stephan’s) from disciplining a claimant’s absence of reference to residual private international law rules, given that hitherto the Supreme Court had never strayed from steering the course of Brussels Ia applying.

Geert.

(Handbook of) EU Private International Law, 2nd ed. 2016, Heading 2, Heading 2.2, Heading 2.2.9.

 

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Sovereign debt litigation in Kuhn: ‘Civil and commercial’ viz bearers of Greek bonds. CJEU holds litigation falls outside of Brussels I Recast. Pays lip-service only to Fahnenbrock.

Update 22 November 2018 see yesterday’s comments by prof Mankowski here. He is right to point out that defence mechanisms available to Greece, are effeitvely limited to sovereign immunity. However that defence is of course a strong one, as I pointed out here, given that even the German courts have acepted it.

I had earlier reviewed Bot AG’s Opinion in C-308/17 Leo Kuhn, in which the Court held on Thursday. The case concerns the retrofit introduction of CACs – Collective Action Clauses, in Greek bonds, allowing the amendment to the initial borrowing terms by decisions adopted by a qualified majority, of the remaining capital owed and applying also to the minority.

Along the lines suggested by the AG, the Court finds the litigation not to relate to civil and commercial matters (likely also leading to a finding on the basis of national law, of sovereign immunity).

Extensive reference is made of course to Fahnenbrock , among others. Yet the Court pays lip service only to Fahnenbrock: in that judgment, it launched the ‘direct and immediate’ formula: in that case it found it was the bondholders’ vote, which led directly and immediately to changes to the financial conditions of the securities in question, not the public authorities’ actions essentially dictating it: therefore that litigation was held not to be actum iure imperii, and it was found to be subject to the service of documents Regulation.

In Kuhn, Brussels I Recast is engaged and here the Court would seem to be inclined to follow (also) Bot AG’s Opinion in Fahenbrock (where he was not so followed): there, Bot AG had opined that the Greek State’s intervention in the contracts was direct and not at a distance from the contract. His focus was more on the circumstances of the case than on the legal nitty-gritty. There are certainly many similarities between Fahnenbrock and Kuhn: in the latter, the crammed-down haircut was formally the result of a majority decision of bondholders to accept the restructuring offer made by the Greek State. Not unlike Fahnenbrock were as noted it was also a bondholders’ vote which was the formal trigger.

In Kuhn, the Court emphasises the context, like Bot to no avail had done in Fahnenbrock: after a succinct tour d’horizon of the debt crisis leading to the CACs, the Court concludes ‘It follows that, having regard to the exceptional character of the conditions and the circumstances surrounding the adoption of Law 4050/2012, according to which the initial borrowing terms of the sovereign bonds at issue in the main proceedings were unilaterally and retroactively amended by the introduction of a CAC, and to the public interest objective that it pursues, the origin of the dispute in the main proceeding stems from the manifestation of public authority and results from the acts of the Greek State in the exercise of that public authority, in such a way that that dispute does not fall within ‘civil and commercial matters’ within the meaning of Article 1(1) of Regulation No 1215/2012.’

I suggested at the time that ‘direct and immediate effect’ is not a criterion which is easy to handle. Yet in solely emphasising context, the Court now casts the net too wide in my view, and at the very least leads to more speculation (pun intended) in the litigation context of sovereign debt.

Geert.

(Handbook of) EU Private International Law, 2nd ed. 2016, Heading 2, Heading 2.2, Heading 2.2.9.

 

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Kuhn: ‘Civil and commercial’ viz bearers of Greek bonds. Bot AG applies Fahnenbrock’s ‘direct and immediate effect’ and distinguishes Kolassa.

Advocate-General Bot opined on 4 July 2018 in the case of C-308/17 Leo Kuhn, domiciled at Vienna, who had purchased through an Austrian bank, Greek sovereign bonds. Pursuant to a forced exchanged /haircut carried out by Greece in March 2012, the bonds were replaced with new bonds with a lower nominal value. Mr Kuhn sued to have the initial borrowing terms enforced.

The Advocate-General is of course aware of the similarities with Fahnenbrock – in which he himself had also opined but was not followed by the Court. He first of all points out the similarities between the service Regulation and the Brussels I Recast (both e.g. limiting their scope of application to ‘civil and commercial’ matters), however also flags the specific recitals (in particular: recital 12) suggesting that in the context of the services Regulation the analysis needs to be done swiftly hence only cases which prima facie fall outside the scope of application (including where they manifestly (see the dictum of Fahnenbrock and para 50 of the AG’s Opinion in Kuhn) are not covered by that Regulation.

Coming next to the consideration of the application of ‘civil and commercial’, the facts of this case reflect very much the hybrid nature of much of sovereign debt litigation. In my view yes, the haircut took place within the wider institutional nature of Greece’s debt negotiations with the EU. Yet the ‘collective action clause’ (CAC) which was not part of the original terms and conditions (there was no CAC in the original lex causae, Greek law, but there is one in the newly applicable lex causae, English law: at 63 of the Opinion), was negotiated with the institutional holders of the bond and crammed down the minority holders like Mr Kuhn (at 66). The AG suggest that this does not impact on the qualification of the changes being ‘immediate and direct’, this being the formula employed by the Court in Fahnenbrock.

I am not so sure of the latter but it will be up to the CJEU to decide.

The Advocate General note bene subsequently ‘completes the analysis’ in case the CJEU disagrees with this view, and finds that if the issue is civil and commercial, it can be litigated under Article 7(1)’s rule on special jurisdiction for contractual obligations (the AG at para 88 ff distinguishes the case from C-375/13 Kolassa (in which the CJEU saw no contractual bond between the issuer of the bonds and the acquirer on the secondary market), the obligation at issue, he suggests, having to be performed in Greece. As for the latter element, the Advocate General does refer for the determination of the place of performance to the initially applicable law: Greek law, leaving the later lex causae, English law, undiscussed.

Whether the Court will follow the AG remains of course to be seen.

Geert.

(Handbook of) EU Private International Law, 2nd ed. 2016, Heading 2, Heading 2.2, Heading 2.2.9.

 

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Ach no! CJEU distinguishes rather than extinguishes its Preussen Elektra case-law in Germany v EC. State aid for renewable energy.

Update May 2019. The General Court’s judgment upon appeal was annulled by the CJEU in Case C-405/16 P at the end of March. In essence, as TaylorWessing point out, although the German State controlled the implementation of the EEG surcharge, it did not control the sums generated, so that the existence of State aid is ruled out.

 

The rather long judgment in T-47/15 Germany v Commission is neatly summarised by the CJEU here. I have reported before on both the State Aid and the free movement implications of the Court’s seminal findings in Preussen Elektra. In current case, the Court essentially upholds the EC’s finding of the more recent German regime amounting to illegal State aid and incompatibility with the Internal Market – in contrast with its earlier findings in Preussen Elektra.

Disappointingly, Preussen Elektra was distinguished rather than its merits called into question. Rather like Advocate-General Bot I stubbornly insist that Preussen Elektra is bad case-law and I continue to call upon the Court to scrap its findings in same.

Geert.

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‘We did not like it. Not one little bit!’ Bot AG reads Dr Seuss in Essent 2.0.

Perhaps because it so reflected our children’s character [all ‘Duracell‘ kids] there is one part of Dr Seuss’ Cat in the Hat which has always stuck with me:

so all we could do was to

sit!

   sit!

      sit!

         sit!

and we did not like it.

not one little bit.

I was reminded of the line, reading Bot AG’s Opinion in Case C-492/14, ‘Essent 2.0’ (not yet available in English at the time of writing). In order to promote the generation of renewable energy, Flanders law makes transmission of electricity generated from renewable sources, free of charge. However this courtesy is limited to electricity generated in installations directly connected to the grid. Essent imports (a considerable part of) its green electricity from The Netherlands. It does not therefore enjoy free transmission.

Bot’s disapproval of trade restrictions like these is well established and has often been reported on this blog. The CJEU disagrees with its AG on many of the issues. I am in general of the same view as the AG. Mr Bot continues to find the Court’s case-law unconvincing and makes no attempt to hide it. He repeatedly mentions that he is duty-bound to apply Essent /Vindkraft without believing they are good law. It is with obvious regret that he Opines that given the Court’s stand in Essent /Vindkraft, he has no option but to propose that the Court find the Flemish regime acceptable.

The AG does however leave open a future window for change: in particular, if and when the secondary law regime on renewable energy specifically, and energy as a whole, is amended, one may be able to distinguish Essent /Vindkraft.

Bot also reminds us of the unclear position of environmental exceptions under Article 36 TFEU and the Rule of Reason. He calls upon the Court formally to acknowledge that the Cassis de Dijon distinction between the Rule of Reason and Article 36 (the former does not allow ‘distinctly applicable’ national measures (read’ discrimination) while the latter does) no longer exists.

I do not like judgment in Preussen Elektra. Or in Essent. Not one little bit. It discourages the creation of a true European energy market. Perhaps the Court will surprise us all in Essent 2.0 and will correct some of the damage it has done with its standing case-law on the matter.

Geert.

 

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Fahnenbrock: ‘Civil and commercial’ viz bearers of Greek bonds. ECJ puts forward ‘direct and immediate effect’.

[Postscript 11 March 2016. The decision of the Bundesgerichtshof on 8 March 2016 is at odds with the CJEU’s finding. Peter Bert has background. The German Court declared action by German bondholders against the Greek State inadmissable  on grounds of sovereign immunity: if the case were admissible, the German courts would have to assess the merits of Greek acta iure imperii].

Within the context of the service of documents Regulation (1393/2007) but with no less relevance for the Jurisdiction Regulation, the Court held last week on the qualification of an action by (German) holders of Greek bonds, against the Greek State, for the involuntary shave they took on those bonds. I reviewed Bot AG’s Opinion here. He had suggested that in the case at issue, the Greek State, with its retroactive insertion of the collective action clause in the underlying contract, exercised acta uire imperii with direct intervention in the contract itself. Not an abstract, general regime (such as a change in overall tax) which only has an impact on said contract at arm’s length.

The ECJ disagreed. Its finding may be distinguishable, in that it emphasises (at 40 and 44 in particular) that for the service of documents Regulation, things need to move fast indeed and hence interpretation even of core concepts of the Regulation needs to proceed swiftly: ‘in order to determine whether Regulation No 1393/2007 is applicable, it suffices that the court hearing the case concludes that it is not manifest that the action brought before it falls outside the scope definition of civil and commercial matters. (at 49) However in the remainder of the judgment it does refer to precedent in particular under the Brussels I Regulation, hence presumably making current interpretation de rigueur for European civil procedure generally.

As noted in my earlier review, Bot AG opined that the Greek State’s intervention in the contracts was direct and not at a distance from the contract. The Court on the other hand essentially emphasised (at 57) that even though the Greek State, with its retroactive insertion of the collective action clause in the underlying contract, enabled the subsequent vote by the majority of the bondholders (to the dismay of the outvoted applicants), it was the vote, which led directly and immediately to changes to the financial conditions of the securities in question and therefore caused the damage alleged by the applicants – not the Act which enabled it. Not acta iure imperii therefore and hence European civil procedure is applicable.

I need to ponder this a bit further however at first sight the ‘direct and immediate’ effect test brings back soar memories of the ‘primarily aimed at’ test in WTO law, which took some time for the Appellate body to shake off. A bit of a leap, I know, but the trade lawyers among you will know what I mean. Applicants in the case at issue may be left arguing that identifying the Greek State’s intervention as the cause of the change in law, is no application of the butterfly effect (an extremely remote event which is being blamed for downstream effects) but rather an elephant in the Greek bond market room.

‘Direct and immediate effect’ may become an important consideration in the ECJ’s application of ‘civil and commercial’ in EU civil procedure law.

Geert.

 

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Ready steady, flare? The ECJ in Marktgemeinde Straßwalchen limits the scope of ‘commercial’ yet insists on strict cumulation test.

In a judgment undoubtedly with consequences for the fracking industry in the EU, the ECJ held yesterday in Marktgemeinde Straßwalchen, Case C-531/13. Rohöl-Aufsuchungs AG had obtained authorisation to undertake exploratory drilling within the territory of the Marktgemeinde Straßwalchen (Austria)  up to a depth of 4 150 metres, without environmental impact assessment. The Marktgemeinde Straßwalchen and 59 other persons have challenged that decision before the Verwaltungsgerichtshof (Administrative Court).

The EIA Directive‘s key element is that not all projects are subject to mandatory EAI. Only projects listed in Annex I of the Directive are subject to a mandatory EIA. Annex I lists for example crude-oil refineries, thermal and nuclear power stations which fulfill certain production or output thresholds. Projects listed in Annex II of the Directive, are subject to a screening procedure of the Member States. Screening is commonly referred to as the process by which a decision is taken on whether or not an EIA is required for a particular project. The competent authority in the Member States can make this decision either based on a case-by-case examination or by establishing thresholds or criteria, or both.

‘Extraction of petroleum and natural gas for commercial purposes where the amount extracted exceeds 500 tonnes/day in the case of petroleum and 500 000 cubic metres/day in the case of gas’ is included in Annex I, sub 14. However the Court held that exploratory drilling even if by nature it is ‘commercial’ (lest it be carried out purely for research purposes), does not meet the conditions of Annex I entry 14, for that provision links the obligation to conduct an environmental impact assessment to the quantities of petroleum and natural gas earmarked for extraction. Prior to an exploratory drilling operation, the actual presence of hydrocarbons cannot be determined with certainty. An exploratory drilling operation is carried out in order to establish the presence of hydrocarbons and, where they are found, to determine the quantity and ascertain, through a trial production, whether or not a commercial operation is feasible. Thus, it is only on the basis of an exploratory drilling operation that the quantity of hydrocarbons that can be extracted per day can be determined. Moreover, the quantity of hydrocarbons earmarked for extraction in such a trial, as well as its duration, are restricted to the technical needs arising from the objective of establishing the feasibility of a deposit.

No mandatory EIA therefore on the basis of Annex I. However, Annex II, in entry 2 d), includes ‘Deep drillings, in particular:(i) geothermal drilling;(ii) drilling for the storage of nuclear waste material; (iii) drilling for water supplies; with the exception of drillings for investigating the stability of the soil’. Exploratory drilling falls under that entry. With reference to previous case-law, the ECJ emphasises that notwithstanding the discretion enjoyed by national authorities vis-a-vis projects included in Annex II, the characteristics of a project must be assessed, inter alia, in relation to its cumulative effects with other projects. Failure to take account of the cumulative effect of one project with other projects must not mean in practice that they all escape the obligation to carry out an assessment when, taken together, they are likely to have significant effects on the environment. With this approach the ECJ has countered the salami effect: the artificial splitting up of projects which do not individually meet EIA thresholds but which do so on a cumulative basis.

There are roughly 30 probes for gas extraction within the area of the Marktgemeinde Straßwalchen. The ECJ does not take the final decision as to whether an EIA therefore had to be carried out, for that is for the national court to be decided, however it is quite likely that the cumulative effect of these 30 probes does lead to a requirement for EIA (which will have to look beyond municipal borders) once it started being clear that the area concerned is a hotbed for such exploratory drillings.

Geert.

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Fahnenbrock: Bot AG opines on ‘civil and commercial’ viz bearers of Greek bonds and the collective action clause.

Update 11 June 2015 the Court itself today held differently. (Seperate post on the judgment will be up soon).

Within the context of the service of documents Regulation (1393/2007) but with no less relevance for the Jurisdiction Regulation, Bot AG opined on the qualification of an action by (German) holders of Greek bonds, against the Greek State, for the involuntary shave they took on those bonds. (A ‘collective action clause’ ( I am quoting Wiki here. And I have donated) allows a supermajority of bondholders to agree to a debt restructuring that is legally binding on all holders of the bond, including those who vote against the restructuring).

Bot AG revisits all the usual suspects in the discussion of ‘civil and commercial’ (see recently the ECJ itself in flyLAL). He suggests that in the case at issue, the Greek State, with its retroactive insertion of the collective action clause in the underlying contract, exercised acta uire imperii with direct intervention in the contract itself. Not an abstract, general regime (such as a change in overall tax) which only has an impact on said contract. Had the latter been the case, the change in say tax would of course have been acta iure imperii however that exercise of sovereign authority would have taken place at a distance from the contract and would have not impacted the ‘civil and commercial’ nature of the contractual dispute.

The Regulation therefore in the Advocate General’s view does not apply in the case at issue. All in all an interesting add-on to the ‘civil and commercial’ case-law.

Geert.

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Your call, sir: The ECJ leaves it to the national court in Essent to deliver ultimate sentence on support scheme for renewables.

Current post is best read in conjunction with my post on Vindkraft . The essence of the questions put to the Court was whether the Treaty’s rules on the free movement of goods, preclude a national support scheme, such as that at issue in the main proceedings, which provides for the issuance, by the competent regional regulatory authority, of tradable certificates in respect of green electricity produced on the territory of the region concerned and which places electricity suppliers under an obligation, subject to an administrative fine, to surrender annually to that authority a certain number of those certificates corresponding to a proportion of the total volume of the electricity that they have supplied in that region, without those suppliers being allowed to fulfil that obligation by using guarantees of origin originating from other Member States of the European Union or non-member States which are parties to the EEA Agreement.

The ECJ, like in Vindkraft, first of all does not rule on the qualification of certificates of origin as being ‘goods’ or not: the legislation at any rate hinders the free movement of the electricity underlying the certificates.

It subsequently basically confirms the main findings of Vindkraft, including the absence of express reversal of the non-applicability of the Rule of Reason  to discriminatory measures (please refer again to my Vindkraft posting should the previous sentence make you scratch your heads). Yes, the Flemish regime restricts trade. Yes, this can be justified for environmental reasons. However, the Court does emphasise the proportionality test. In Vindkraft, the ECJ itself held the scheme to be compatible with the Treaty by virtue essentially of its highly transparent and market-driven character. In Essent, however, this final call is left to the national judge. For the Flemish scheme to meet the proportionality test, it is important that mechanisms be established which ensure the creation of a genuine market for certificates in which supply can match demand, reaching some kind of balance, so that it is actually possible for the relevant suppliers to obtain certificates under fair terms (at 112).

Furthermore, the fine in the absence of quota fulfilment must not impose excessive penalties imposed on the traders concerned (at 114). It is for the national court to verify this.

I had flagged the much less market-oriented character of the Flemish scheme as a distinguishing factor viz Vindkraft. It is now up to the Brussels court of first instance (and others beyond it, one imagines) to deliver the ultimate verdict.

Geert.

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Renewable energy and trade: Now it’s all clear, Essent it? The ECJ in Vindkraft.

Post-script 28 August 2014: The ECJ will hold in Essent C-204/12 on 11 September

Updated 11 September: see here for review of judgment in Essent.

As reported, the ECJ last week held in Vindkraft. It did not follow the lead of Bot AG who had suggested inter alia that Directive 2009/28 itself  (which the ECJ has now found is not exhaustive on the issue of territorial restrictions of support schemes, hence requiring assessment under primary EU law) is contrary to EU primary law in allowing Member States to discriminate against foreign produced renewable electricity by limiting access to their national support scheme to electricity generated on their territory; and that such illegality is not backed by the environmental exceptions to the Treaty. I had suggested at the time of the AG issuing his Opinion in the related case of Essent, that there is in my view merit in the argument that the relevant Union laws require Member States to roll-out their own, national renewable energy capabilities, and that systems such as the Flemish one (in Essent) or Swedish one (Vindkraft) may be required to support industry to work towards that goal.

The ECJ agrees. Member States can continue to restrict access to their support schemes (in the strict sense of not rolling out financing to renewable energy of foreign origin): this constitutes an infringement to the free movement of goods but one which can be justified. In Preussen Elektra the ECJ had allowed the German scheme despite it being discriminatory. This might have been an implicit reversal of the case-law that infringements of the free movement of goods may only be based on the court-invented ‘mandatory requirements’ (of which environmental protection is one; as opposed to those societal interests which are included in the explicit list of exceptions of Article 36 TFEU) where they do not discriminate. (Not, such as is the case here, where they undoubtedly discriminate). That it might have been such reversal  had led the AG to suggest, finding support in the integration principle, that the Court in Essent should make that reversal explicit. In the end the Court decided Vindkraft before Essent (which is still pending) and simply refers (at 80) to its Preussen Elektra case law: no explicit reversal.

That is unfortunate for we are now left to ponder whether Preussen Elektra /Vindkraft (probably also Essent?) needs distinguishing (making reneable energy /Kyoto /UNFCCC commitments stand out from other environmental requirements)?

The Court instead focusses on proportionality. In that assessment, as pointed out by Catherine Banet, the ECJ emphasises the market-based elements of the Swedish scheme (the certificates can be sold separately from the underlying electricity and the market is operated in a transparent and liquid fashion): a less market-oriented approach may not have survived ECJ scrutiny.

Deciding Vindkraft together with Essent would have been helpful. Instead, Essent still contains another angle: namely certificates of origin (as opposed to only green certificates. Green certificates are used by a Member State to show its meeting its obligations to produce a minimum amount of electricity from renewable sources. Certificates of origin allow an electricity distributor to prove that x amount of its electricity distributed, originates from renewable energy). The Flemish support scheme for renewable energy at issue in Essent, grants renewable energy certificates to producers of such energy only if they are located in the Flemish Region, and obliges electricity distributors to surrender a minimum amount of such certificates without being able to offer such certificates obtained in other EU Member States. Taking the lead of the Court in Vindkraft, the Flemish scheme looks more vulnerable to me.

In conclusion: no, it Essent yet clear.

Geert.

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