Posts Tagged Rome II
Court confirms: tortious suit brought by liquidator (‘Peeters /Gatzen’) is covered by Brussels I Recast.
I am hoping to catch-up with my blog backlog this week, watch this space. I’ll kick off with the Court of Justice last week confirming in C–535/17 NK v BNP Paribias Fortis that the Peeters /Gatzen suit is covered by Brussels I Recast. Citing similar reasons as Bobek AG (whose Opinion I reviewed here), the Court at 34 concludes that the ‘action is based on the ordinary rules of civil and commercial law and not on the derogating rules specific to insolvency proceedings.’
This reply cancelled out the need for consideration of many of the issues which the AG did discuss – those will have to wait for later cases.
(Handbook of) EU private international law, 2nd ed. 2016, Chapter 5, Heading 5.4.1, Heading 5.7.
DES v Clarins. The law applicable to ending commercial agency: Granarolo (and Rome I’s /Rome Convention’s overriding mandatory law rules) applied by Paris Court of Appeal.
In RG 16/05579 DES v Clarins (I have a copy on file for those finding it difficult to get access) the Paris Court of Appeal on 19 September 2018 effectively applied the CJEU’s Granarolo judgment on jurisdiction, to issues of applicable law. Yet it leaves many questions unanswered and does not carry out a neat and tidy analysis at all.
Companies belonging to the Clarins group (of France and Luxemburg) were sued for breach of their business relationship with a French company that distributed Clarins cosmetics in Algeria through local companies there, and for the alleged sudden halt in negotiations to try and resuscitate their contractual relationship.
The Court of appeal first of all (p.16-17 of the PDF version of the judgment) summarily rejects objections to the anchoring of non-France based defendants onto Clarins, with domicile in département 92 – Hauts de Seine: claimants request damages from all defendants, on the basis of the same facts and the same legal basis. So as to avoid conflicting judgments the Court sees no reason at all not to join the cases.
In terms of applicable law, the Court refers to Granarolo to qualify the relationship as contractual (reference is made to a tacit contract), yet then skips the application of the cascade rules of the Rome Convention (which applied ratione temporis rather than Rome I) to simply jump straight to the qualification as the relevant French rules as lois de police. As Christophe points out, there are plentry of the Convention’s default categories which could have applied to the case. Skipping the cascade to go straight to the exception is not the right way to go about conflict of laws.
The Court similarly cuts plenty a corner by summarily qualifying the sudden stop to negotiations to resuscitate a previous contractual relationship as non-contractual and applying French law as lex loci damni per Rome II (p.18), particularly as Rome II has a specific rule for culpa in contrahendo.
I am assuming an appeal with the Supreme Court is underway.
(Handbook of) European Private International Law, 2nd ed. 2016, Chapter 2, Heading 220.127.116.11, Heading 18.104.22.168.9; Chapter 3, Heading 3.2.8, Heading 22.214.171.124).
Vis (non) attractiva concursus. Bobek AG suggests tortious suit brought by liquidator (‘Peeters /Gatzen’) is covered by Brussels I Recast.
I earlier posted a guest blog on the qualification of the Dutch Peeters /Gatzen suit, a damages claim based on tort, brought by a liquidator against a third party having acted wrongfully towards the creditors. Bobek AG opined two weeks back in C-535/17 NK (insolvency practitioner for a baillif practice) v BNP Paribas Fortis.
His Opinion is of relevance not just for the consideration of jurisdiction, but perhaps even more so (for less litigated so far) for the analysis of applicable law.
Roel Verheyden has commented on the Opinion in Dutch here, and Sandrine Piet had earlier contextualised the issues (also in Dutch) here. She clarifies that the suit was introduced by the Dutch Supreme Court in 1983, allowing the insolvency practitioner (as EU insolvency law now calls them) to claim in tort against third parties whose actions have diminished the collective rights of the creditors, even if the insolvency person or company at issue was not entitled to such suit. The Advocate General himself, in his trademark lucid style, summarises the suit excellently.
Importantly, the Peeters /Gatzen is not a classic pauliana (avoidance) suit: Bobek AG at 16: ‘The power of the liquidator to bring a Peeters-Gatzen action is not limited to cases where the third party belongs to the circle of persons who, based on a Paulian (bankruptcy) claim .. would be liable for involvement in allegedly detrimental acts. The liquidator’s competence relates more generally to the damage caused to the general body of creditors by the wrongful act of a third party involved in causing that damage. The third party need not have caused the damage or have profited from it: it is sufficient that that third party could have prevented the damage but cooperated instead.’
In the case at issue, the third party is BNP Paribas Fortis, who had allowed the sole director of the company to withdraw large amounts of cash from the company’s account.
Firstly, on the jurisdictional issue, Nickel /Goeldner and Nortel had intervened after the interim judgments of the Dutch courts, creating doubt in their minds as to the correct delineation between the Insolvency and Brussels I Recast Regulation. The Advocate-General’s approach in my view is the correct one, and I refer to his Opinion for the solid arguments he deploys. In essence, the DNA of the suit are the ordinary rules of civil law (re: tort). That it be introduced by the insolvency practitioner (here, the liquidator) and that it is the case-law on liquidation proceedings which has granted that right to the liquidator, is not materially relevant. Note that the AG correctly adds in footnote 40 that even if the suit is not subject to the Insolvency Regulation, that Regulation does not disappear from the litigation. In particular, given that liquidation proceedings are underway, the lex concursus determines the ius agendi of the liquidator to bring the suit in tort, in another Member State (Belgium, on the basis of Article 7(2) or 4 Brussels I Recast).
Now, for applicable law, the AG first of all completes the analysis on the basis of the Insolvency Regulation, in the unlikely event the CJEU were not to follow him on the jurisdictional issue. Here (para 85 ff) the referring court wishes to know whether, if the Peeters-Gatzen action is covered by the Insolvency Regulation, such a claim would be governed, pursuant to Article 4(1) of that Regulation, by the law of the Member State where the insolvency proceedings were opened as regards both the power of the liquidator to bring that claim and the substantive law applicable to that claim. This question seeks to determine whether it is possible to follow the approach of the second-instance court in the main proceedings, and separate the law governing the powers of the liquidator (ius agendi) from the law applicable to the merits of the claim. The powers of the liquidator would then be governed by the lex fori concursus (Dutch law, per Article 4(2)(c) Insolvency Regulation). That article states that ‘the law of the State of the opening of proceedings … shall determine in particular … the respective powers of the debtor and the liquidator’. However, the merits of the claim would then be governed by the law applicable by virtue of the general (non-insolvency) conflict of law rules. In the present case that would lead to application of residual Dutch conflict of law rules, because the Rome II Regulation does not apply ratione temporis as the AG further explains. These rules lead to Belgian law being the lex causae.
Within the assumption of the Insolvency Regulation determining jurisdiction (for see footnote 40 as reported above, re ius agendi) the AG emphasises the Regulation’s goal of Gleichlauf: at 89: If the Peeters-Gatzen action were covered by the Insolvency Regulation, all its elements would be governed exclusively by the conflict of law rules of that regulation.
(Current) Article 16’s exception such as in Nike and Lutz does not come into play for as Bobek AG notes at 94, ‘It is difficult to see how the Peeters-Gatzen action at issue in the main proceedings could be qualified as a rule ‘relating to the voidness, voidability or unenforceability of legal acts detrimental to all the creditors’, in the sense of Article 4(2)(m) [old, GAVC] of the Insolvency Regulation. The purpose of such an action is not a declaration of the voidness, voidability or unenforceability of an act of the third party, but the recovery of damages based on the wrongful behaviour of that third party towards the creditors. Therefore, as Article 4(2)(m) [old, GAVC] of the regulation would not apply in the main proceedings, the exception in Article 13 [old, GAVC] could not apply either.’
The AG finally discusses the referring court’s question whether if the Peeters-Gatzen action is exclusively subject to the lex fori concursus, it would be possible to take into account, whether directly or at least by analogy, and on the basis of Article 17 Rome II read in conjunction with Article 13 (now 16) of the Insolvency Regulation, the security regulations and codes of conduct applicable at the place of the alleged wrongful act (that is to say, in Belgium), such as financial rules of conduct for banks. Article 17 Rome II reads ‘In assessing the conduct of the person claimed to be liable, account shall be taken, as a matter of fact and in so far as is appropriate, of the rules of safety and conduct which were in force at the place and time of the event giving rise to the liability.‘
I have argued before that Article 17 Rome II does not have the rather extensive impact which some attribute to it. The AG, after signalling that the Article is yet to be applied by the CJEU, notes that Rome II does not apply here ratione temporis. He then concludes with an aside (it is not articulated as a proper argument – which is just as well for it is circular I suppose): at 104: ‘the more pertinent question is… whether it is really necessary to have recourse to a cumbersome legal construction, in this case the application of rules by analogy, outside of their material and temporal scope, in order to reach a solution (the application of Belgian law) which solves a problem (the applicability of Netherlands law by virtue of the Insolvency Regulation) that should not have been created in the first place (since the Peeters-Gatzen claim at hand should fall within the scope of the Brussels I Regulation). In any event, I am of the view, also in this regard, that these questions by the referring court rather confirm that there is no close connection between that action and the insolvency proceedings.’
(Handbook of) EU private international law, 2nd ed. 2016, Chapter 5, Heading 5.4.1, Heading 5.7.
Committeri v Club Med. The Court of Appeal parades CJEU precedent to distinguish contract from torts.
 EWCA Civ 1889 Committeri v Club Med , appeal against Dingeman J’s findings in  EHWC 1510 (QB) featured in a recent resit exam of mine, slightly later reporting therefore. Dingeman J’s analysis was confirmed by the Court of Appeal.
Mr Committeri lived and worked in London. He was injured when climbing an ice wall in Chamonix in France in 2011. He brought proceedings in England against Club Med and their insurers: they had provided the relevant travel and accommodation pursuant to a ‘team-building’ contract with the appellant’s employers, a Bank. The claim is pleaded by reference to that contract and Article L211-16 of the French Code de Tourisme (which imposes strict (safety) liability upon the providers of tourist accomodation: une obligation de résultat); contrary to English law which foresees in une obligation de moyens).
French law has considered that “proper performance of the contract” in a package holiday setting requires the absolute safety of the consumer, so that (unless the exceptions in the Code apply) when there is an injury on a package holiday the organiser will be liable.
The central issue is the proper characterisation of that claim. If it is a contractual claim then English law applies (the lex contractus agreed between the Bank and Club Med) and it is common ground that it will fail. If it is properly characterised as a non-contractual claim, French law applies and it is agreed that it will succeed.
At 52 Coulson LJ summarises the modus operandi per the European precedents as follows:
‘(a) The mere fact that a contracting party brings a civil liability claim against the other party does not by itself mean that the claim concerns “matters relating to a contract” but it will be sufficient if the conduct complained of may be considered a breach of contract (Brogsitter ) or if the purpose of the claim is to seek damages, the legal basis for which can reasonably be regarded as a breach of the rights and obligations set out in the contract (Brogsitter ).
(b) Only an obligation freely consented to by one person towards another and on which the claimant’s action is based is a ‘matter relating to contract’ (Ergo ).
(c) The classification of an obligation for the purposes of Rome I or Rome II depends on the (contractual or non-contractual) source of that obligation (Amazon, AG’s opinion ). A contractual obligation implies at the very least an actual and existing commitment (Amazon ).’
I would have added what I called Sharpston AG‘s ‘pedigree’ (one of my students seems to have mistakenly noted this down as ‘Paddy Pee’), ‘ancestry’, or ‘centre of gravity’ test in Ergo.
At 53: ‘On an application of all or any of those principles, it is clear that the pleaded strict liability claim can only be characterised as a contractual claim. …That contract is the source of the relevant obligations and imposed the necessary commitments. To put it another way, to use Judge Waksman’s words in AXA ( EWHC 3431 (Comm), the contract was not “a stepping stone to the ultimate liability of [the respondent but] the basis for the obligation actually relied upon…”.
A very useful reminder of the relevant precedents.
(Handbook of) EU Private International Law, 2nd ed. 2016, Chapter 2, Heading 126.96.36.199.
Thank you Brodies for flagging  CSOH 25 George Docherty et al a while ago – I was not sure whether I might use the case for exam purposes. C-350/14 Lazar was among the precedents cited by Lord Tyre to decide the application ratione temporis of the Rome II Regulation.
Article 31 Rome II states that the Regulation applies to “events giving rise to damage which occur after its entry into force”. The date of entry into force, according to article 32, was 11 January 2009. The reference in article 31 to “events giving rise to damage” is not necessarily easy to determine. Lord Tyre at 31 clarifies things by suggesting the Article is ‘clearly linked to the distinction drawn in article 4(1) between three separate concepts, namely (i) the event giving rise to the damage; (ii) the damage; and (iii) the indirect consequences of the event. In the present case, the damage consisted of the deceased’s illness and death. The indirect consequences are the losses suffered by the deceased’s relatives. The event giving rise to all of this was exposure to asbestos’: this occurred before the entry into force of the Regulation.
Had it occurred after, the Court would have applied Rome II for the UK has opted to apply the Regulation’s Article 25(2) provision for Member States with internal conflicts of laws, to apply the Regulation to these conflicts: The Law Applicable to Non-Contractual Obligations (Scotland) Regulations 2008 (SI 2008/404) provide (reg 3) that the Regulation shall apply in the case of conflicts between the laws of different parts of the UK as it applies in the case of conflicts between the laws of other countries. SI 2008/2986 contains an equivalent provision for England, Wales and Northern Ireland.
Accordingly what the applicable law would be under the Regulation is not addressed, neither is the pursuers’ submission that any choice of English law by virtue of article 4(1) should be displaced by applying article 4(3) and holding that the delict is manifestly more closely connected with Scotland.
Residual conflict of laws applies and at 17 ff the judge applies pre-1995 common law, leading to the lex loci delicti. However these rules do not provide a clear identification of the lex loci delicti where the harmful event occurs in one jurisdiction (Scotland) but the harm, consisting of physical injury, occurs in another (England). Reviewing authority, Lord Tyre eventually holds (at 23) that the presence of asbestos dust in an employee’s lungs does not of itself constitute injury, and (subject to the Scottish statutory provisions regarding pleural plaques) no cause of action arising out of negligent exposure arises until it does. At 24: since injury is an essential ingredient of an actionable wrong, and since injury obviously cannot take place until after the breach of duty has occurred, the place of the harmful event (or locus delicti) is where the injury takes place and not, if different, where the antecedent negligent act or omission occurred.
Conclusion: lex causae is English law. The case is a good illustration of the difficulties that remain in applying what seem prima facie fairly understandable concepts to the average lawyer.