Posts Tagged France
I applied for funding 2 years back to have someone conduct a thorough review of recent development in State Immunity. Funding was not granted: quelle horeur!. Reviewers suggested there was no need to revisit an area where law and practice is settled: quelle erreur!
Needless to say both statutory and case-law developments have proven reviewers wrong since. I would still be happy by the way to supervise research in the area (happier still for someone to fund it).
Now, coming to the point: in 16-22.494 Congo v Commisimpex the French Supreme Court essentially held that the French Sapin II law applies retroactively. State assets employed iure imperii are only available for seizure following express and property-specific waiver. The Court’s decision does not reflect unisono developments in other States (neither indeed, I agree with Victor Aupetit), does it help France with regulatory competition in civil procedure: quite a few jurisdictions have taken a more relaxed and wide approach to contractual waiver of State immunity.
And I would be very happy to supervise. Thank you Nicolas Contis for flagging Stockholm National Museum v X at the French Supreme Court /Cour de Cassation. Nul ne peut se contredire au détriment d’autrui: aka (here: procedural) estoppel. (The newly out Encyclopedia of Private international law, edited by Basedow, Ruhl, Ferrari and de Miguel Asensio, has a very good entry on it, discussing both public and private international law).
On the eve of a hearing on the ownership of an ancient artefact, a cup, defendants changed their stance and argued that the cup had belonged to their mother, for whom they were acting as representatives only. Previously, they had always presented themselves as owners. They suggested therefore that the suit was misdirected, hoping to sink it. The Court of Appeal dismissed the defendants’ motion on account of procedural estoppel. The Supreme Court disagreed: its stance means, as Nicolas summarises, that ‘to face the procedural penalty of dismissal, not only must the change of stance happen throughout the judicial proceedings (ie, notably, that a contradiction including a repeated allegation made before the launching of a suit could not pass the estoppel test), but the party at fault must also have changed its ‘pretentions’ – that is, its legal claims (meaning that changing the factual allegations presented to the courts could not pass the test either)’.
I do not see entirely clear in French civil procedure law but as I saw the case reported, the thought struck me: this would be a good topic for a PhD: a comparative study in procedural estoppel, specifically in a private international law context (especially if one were also to throw a comparison with arbitration in the mix).
Happy to discuss. Geert.
In Cartier v Ziegler, Case C-1/13, the Court of Justice held that the application of Article 27’s Lis Albi pendens rule (Brussels I Regulation) does not require a formal decision by the national court first seized (or exhaustion of national remedies against such acceptance of jurisdiction). In a multi-party case involving insurance companies, forwarders and transporters (sub-sub contracted) of a shipment of Cartier goods, the UK High Court was undeniably first seized vis-a-vis at least some of the parties involved in the litigation in France, however the question was how Article 27’s lis alibi pendens rule needs to be applied.
Under Article 27(1) of Regulation 44/2001, where there are parallel proceedings before the courts of different Member States, the court second seised must stay its proceedings of its own motion until the jurisdiction of the court first seised is established. Furthermore, Article 27(2) provides that, where the jurisdiction of the court first seised is established, any court other than the court first seised must decline jurisdiction in favour of that court.
The French Cour de Cassation asked essentially whether Article 27(2) of the Brussels I-Regulation must be interpreted as meaning that it is sufficient, for the jurisdiction of the court first seised to be established within the meaning of that provision, that no party has contested its jurisdiction or whether it is necessary that that court has impliedly or expressly assumed jurisdiction by a judgment which has become final.
The referring court referred to scholarship suggesting that the jurisdiction of the court first seised may be established only by a judgment from that court explicitly rejecting its lack of jurisdiction or by the exhaustion of the remedies that are available against its decision to assume jurisdiction.
The ECJ held ‘Article 27(2) of Council Regulation (EC) No 44/2001 (…) must be interpreted as meaning that, except in the situation where the court second seised has exclusive jurisdiction by virtue of that regulation, the jurisdiction of the court first seised must be regarded as being established, within the meaning of that provision, if that court has not declined jurisdiction of its own motion and none of the parties has contested its jurisdiction prior to or up to the time at which a position is adopted which is regarded in national procedural law as being the first defence on the substance submitted before that court.’
The Court’s finding does of course require the court seized later (or the lawyers appearing before it) to be au fait with the procedural law of the alternative court (such as in France, the possibility to raise objection against jurisdiction verbally only).
The ECJ’s overall consideration here lies with obliging but also enabling the court seized second, not to linger indefinitely with the application of Article 27.
Rolex v Blomqvist. ECJ confirms irrelevance of ‘focus and target’ or ‘direction’ in intellectual property cases.
After its withholding of mere accessibility of a site as a jurisdictional trigger for copyright infringement in Pinckney, the ECJ has now accepted that the mere acquisition of a good by a person domiciled in an EU Member State, suffices to trigger the application of the EU Customs Regulation’s provisions on counterfeit and pirated goods. It is not necessary, in addition, for the goods at issue to have been the subject, prior to the sale, of an offer for sale or advertising targeting consumers of that State.
In Case C-98/13 Martin Blomqvist v Rolex Mr Blomqvist, a resident of Denmark, ordered a watch described as a Rolex from a Chinese on-line shop. The order was placed and paid for through the English website of the seller. The seller sent the watch from Hong Kong by post. The parcel was inspected by the customs authorities on arrival in Denmark. They suspended the customs clearance of the watch, suspecting that it was a counterfeit version of the original Rolex watch and that there had been a breach of copyright over the model concerned. In accordance with the procedure laid down by the customs regulation, Rolex then requested the continued suspension of customs clearance, having established that the watch was in fact counterfeit, and asked Mr Blomqvist to consent to the destruction of the watch by the customs authorities. Mr Blomqvist refused to consent to the destruction of the watch, contending that he had purchased it legally. Is there in the present case any distribution to the public, within the meaning of the copyright directive, and any use in the course of trade, within the meaning of the trade mark directive and the trade mark regulation?
The ECJ re-iterated earlier case-law (in particular L’Oreal /E-bay) that the mere fact that a website is accessible from the territory covered by the trade mark is not a sufficient basis for concluding that the offers for sale displayed there are targeted at consumers in the EU. However proof that the goods are intended to be put on sale in the European Union, is being provided, inter alia, where it turns out that the goods have been sold to a customer in the European Union, such as clearly in the case at issue.
That sales to the EU have taken place is enough. Proof that EU consumers were actually targeted is not required – at least not with a view to triggering intellectual property protection (cf consumer protection under i.a. the jurisdiction Regulation).
In the view of the EU of course this is not an ‘extraterritorial’ application of EU law: the territorial link is firmly established through the customer’s domicile.
In National Grid Electricity Transmission, the UK High Court correctly confirmed the Evidence Regulation as being subsidiary only.
The European Commission had found 20 companies to have been engaged in an extensive and sophisticated cartel regarding the supply of GIS, Gas Insulated Switchgear, which controls energy flow in electricity grids, and is therefore used as a major component in power substations. National Grid alleges that it suffered substantial losses by reason of overcharges resulting from the illegal cartel. Current judgment is an interim judgment on the issue of disclosure. Estimating the cartel overcharge is very dependent on expert economic evidence.
Alstom and Areva are both French-domiciled defendants. They argue that providing disclosure will put them, as French companies, in breach of a prohibition under French law which attracts criminal penalties, and therefore should not be ordered. This prohibition is referred to in the High Court judgment as the ‘French Blocking Statute‘, of 1968, as amended, most notably in 1980. The prohibition is mostly meant to assist French companies in resisting excessive disclosure requests originating in the United States. Applicants had made a request under the EU’s Evidence Regulation and had served that request to the French Ministry of Justice.
The Ministry eventually refused, mostly for technical legal reasons (the request made had identified the defendants as the ones having to produce the evidence, rather than the court having to order them to do so). Alstrom and Areva subsequently argued that the only route for them to be safe from prosecution under the French law, was for the UK court to seek the assistance of a French Court under the EU Evidence Regulation.
Roth J first considered (with French expert help) the likelihood of the companies involved being prosecuted under the Act. On that point, he concluded ‘I find it virtually inconceivable that where jurisdiction over a company is exercised pursuant to an EU regulation to make it a defendant to proceedings in another EU Member State, for damages alleged to result from an established and serious violation of a fundamental provision of EU law, which proceedings serve an objective of EU policy, the public authorities of one EU Member State would in the exercise of their discretion institute criminal proceedings against that company for complying with the procedural rules of the courts of the Member State where the proceedings are brought.’
He subsequently discussed the evidence Regulation. This Regulation is of a subsidiary nature, as I have flagged once or twice before. It does not rule out national procedural rules as an alternative. Roth J correctly holds that the Regulation would not assist in this case (whether or nor it applies to disclosure proceedings between litigious parties at all is a different matter), inter alia because of the delays and because of the potential for the French courts eventually not to meet the request, thus leading to further uncertainty. He held therefore that the French Defendants should be subject to an order for disclosure in the same way as all the other defendants.
Appeal on 22 October 2013 did not lead to the findings being overturned. The French companies now face the proverbial rock and hard stone: comply with the English order but face the possibility, however remote, of prosecution under French law. Or be safe from prosecution under French law but face contempt in the UK courts.
postscript: The Supreme Court refused permission to appeal in December 2013.
As I tweeted earlier, the French Constitutional Court has rejected the challenge to its moratorium on fracking. The precautionary principle was not quite addressed head on by the Court – it simply noted that in the current state of scientific insight, the ban was not disproportionate. The non-discrimination principle was also addressed: Schuepbach Energy had argued that in allowing geothermal projects and disallowing shale gas exploration, this principle was infringed. The Court disagreed: its review of the preparatory works of the Government Order showed that the government considered the two risks involved to be very different. Note the high degree of deference to the Government’s conclusions from scientific opinion. France is not by chance the state of origin of the ‘Bouche de la Loi’ theory!
Marjolein de Ridder and Sijbren de Jong report here on the geopolitical implications of shale. Legal arguments like the ones discussed in the French litigation have an important impact on that debate – or is it the other way around?