Brussels Ia Flashcards
1
Q
Gasser
A
- torpedo
- mutual trust ensures that MS may not circumvent the lis alibi pendens rule (even in cases of extreme backlog)
2
Q
Turner
A
anti-suit injunctions undermine the mutual trust
3
Q
Owusu
A
- predictability = abstract, predictable exercise
forum non conveniens is unpredictable - the involvement of a MS is enough to trigger BIa in an international context (even if the alternative is a non-EU court)
4
Q
Lindner
A
- the court of last domicile has jurisdiction (fair balance and legal certainty)
- potentiality of another court in another MS to claim jurisdiction based on nationality is enough to trigger BIa
5
Q
Commerzbank
A
- it’s sufficient that the international element only arises after the formation of the contract; thereby triggering BIa only after the formation
- probably limited to protected categories only
6
Q
Inkreal + Vinyls Italia
A
- there doesn’t have to be any actual connection with the jurisdiction in question
- predictability + B2B context
7
Q
Gray v. Hurley
A
domicile defendant impossible to ID
1. Was there an international element to trigger BIa?
2. could they use anti-suit to prevent the defendant to sue in NZ?
8
Q
Eurocontrol
A
- autonomous interpretation of civil and commercial
- certain types of judicial decisions must be regarded as excluded either by reason of legal relationships between parties or of the subject matter of the action
- acta iure imperii = BIa doesn’t apply when a public authority acts within its exercise of powers
9
Q
Fahnenbrock
A
acta iure imperii needs direct and immediate effect
10
Q
Kuhn
A
when the public body is acting in a private capacity, the case can be civil and commercial
11
Q
Steenbergen
A
it’s sufficient that the acta iure imperii only exists on paper to be not civil and commercial
12
Q
Dinant
A
possible to split the litigation
13
Q
Obala
A
- preference for the legal relationship between parties
- AG Bobek gives criteria
14
Q
SKAT
A
was mostly about tort, not an exercise of public authority related to tax
15
Q
Eurelec Trading
A
- authorities had a search and seize power that a competitor doesn’t have
- you have to look at the powers in concreto with abstract criteria
16
Q
Movic
A
whether it is civil and commercial depends on the actual view by the authorities of their powers
17
Q
Rina
A
if it doesn’t have any discretion, it’s civil and commercial
18
Q
BA v. SEPLA
A
HC: public law protected under TFEU
prof: money claim = civil and commercial
19
Q
Rich
A
arbitration
- one should look at the subject matter of the dispute to decide whether or not it is about arbitration
20
Q
Van Uden
A
arbitration
- arbitration clause
- interim measures are intended as measures of support for such proceedings, they don’t concern arbitration as such
provisional and protective measures (art 35)
- there needs to be a real connecting link between the subject matter of the measures and the territorial jurisdiction of the MS (doesn’t need to be territorial sensu stricto)
21
Q
West Tankers
A
arbitration
- if the procedure that relates to the arbitration doesn’t have arbitration itself as a subject –> matter DOES fall within the scope of BIa
22
Q
Prestige Steam-Ship
A
arbitration
- there is a scope for recognition and refusal
the CJEU brings excluded subject matter properly into BIa through Title III
23
Q
J v. H Limited
A
arbitration
- a subject matter which is excluded from Title I and II (non-EU judgment) can nevertheless qualify under Title III
recognition and enforcement
- wide room of manoeuvre to refuse to recognise
- CJEU allows a non-EU judgment (which should be excluded) to become an art 53 kind of judgment capable of recognition
24
Q
Webb v. Webb
A
exclusive jurisdiction (art 24.1)
- restrictive rights in rem
- look at object of proceedings
- in casu it was proper performance of a trust relationship, not rights in rem
25
Reichert
exclusive jurisdiction (art 24.1)
- restrictive rights in rem
- strict scope of application art 24
- action in which a creditor under national law applies to have a donation of property set aside falls OUT of the scope
26
Gaillard
exclusive jurisdiction (art 24.1)
- restrictive rights in rem
- an action for rescission of a contract for sale of land and consequential damages falls OUT of the scope
27
Schmidt v. Schmidt
exclusive jurisdiction (art 24.1)
- art 8.4 claim joined with art 24.1 court
- voidance of the contract IS NOT a right in rem
- removal of the name out of the register IS a right in rem
28
Ellmes Property Services
exclusive jurisdiction (art 24.1)
- rei sitae qualification subject to qualification under national law
- action by which co-owner prohibits another co-owner the change the usage of the property can fall under the scope if it has organised effect
- referring court needs to assess the lex loci rei sitae
29
Weber v. Weber
exclusive jurisdiction (art 24.1)
- rei sitae qualification subject to qualification under national law
- whether or not a right of first refusal in co-ownership has mass effect needs to be determined in accordance with national law
30
Klein
exclusive jurisdiction (art 24.1)
- it has to be tenancy
- can't be time-share
- there needs to be a direct link
31
Hacker v. Euro-Relais
exclusive jurisdiction (art 24.1)
- it has to be tenancy
- can't be whistles and bells contract
- if there are additional services, it's not tenancies but complex travel arrangements --> falls OUT of the scope of art 24
32
Roompot Services
exclusive jurisdiction (art 24.1)
- only for short-term non-professional lets
- you have to look at the entirety of the contract and the complexities of the applications and services
33
Mozambique rule
exclusive jurisdiction (art 24.1)
- we shouldn't touch cases when they're concerned in the hardcore rights in immovable property
34
BVG
exclusive jurisdiction (art 24.2)
- restrictive validity of organ decision
- NOT an ultra vires issue
35
BSH Hausgeräte GmbH
exclusive jurisdiction (art 24.2)
- restrictive validity of organ decision
- narrow reading of 24(4)
- only the validity element moves to the court
- reflexive effect
- AG opined in favour of reflexive effect
- art 4 doesn't stand in the way of art 24 reflexive effect, despite art 24 not saying anything about it, nor BIa and despite lis pendens rules (art 33-34)
- prof disagrees: specific narrow possibility of a stay in reflexive circumstances under art 33-34 would imply that includes a general reflexivity rule in art 24
36
Koza v. Akcil
exclusive jurisdiction (art 24.2)
- restrictive validity of organ decision
- if you allow a judge to second-guess what the claim is about, you're broadening art 24(4) too much
37
Barclay Pharmaceuticals
exclusive jurisdiction (art 24.3)
- restrictive validity of entries in public registers
- English judgment which deals with real ownership of financial assets is NOT caught by art 24(3)
38
GAT v. LUK
exclusive jurisdiction (art 24.4)
- restrictive registration/validity of registered IP rights
- if you claim the IP right doesn't exist, it moves to art 24.2 = if the IP right doesn't exist, the whole case vanishes
- crucial for relationship art 24.2-24.4 and reflexive effect
39
Hanssen
exclusive jurisdiction (art 24.4)
- restrictive registration/validity of registered IP rights
- formal proprietor making a declaration that she has no entitlement to the mark and waives registration is NOT caught
40
DNI
exclusive jurisdiction (art 24.4)
- DNI NOT caught by art 24.4
- claimants may seek to circumvent art 24.4 by carving out validity claims
- denial of infringement often used to question the validity of patents
41
AS-Autoteile Service
exclusive jurisdiction (art 24.5)
- enforcement of judgments
- you can't abuse art 24.5 to reopen litigation that led to the judgment in the other MS
42
IRnova
exclusive jurisdiction (art 24.4)
- reflexive effect
- art 24.4 does not apply reflexively and stoemelings
43
ZX v. Ryanair
jurisdiction by appearance (art 26)
- it's not because you answer to a clerk request that you are submitting to the court
- you can still contest jurisdiction, but you must do so at limine
branch jurisdiction (art 7.5)
- branch = centre of operations + has the appearance of permanency + management + materially equipped to negotiate business with third parties
- you need to have an establishment in the MS where the branch is located or a link related to the branch
44
Ilsinger
consumer (art 17-19)
- there must be a contract
- reciprocity (active consumer)
- reciprocity is not required under art 7.1
45
Bonnie Lackey
consumer (art 17-19)
- contract is concluded by a consumer
- a group can be a consumer = whole party
46
Flowers
consumer (art 17-19)
- contract is concluded by a consumer
- to what degree could relatives of medical liability issue be seen as consumers?
- no CJEU authority
47
Gruber
consumer (art 17-19)
- consumer contract
- restrictive approach consumer title
- dual use: consumer needs to show professional use is negligible
48
Wurth Automotive
consumer (art 17-19)
- consumer contract
- pre-existing general knowledge of the consumer is irrelevant
49
Petruchova
consumer (art 17-19)
- consumer contract
- pre-existing general knowledge of the consumer is irrelevant
50
Reliantco
consumer (art 17-19)
- consumer contract
- pre-existing general knowledge of the consumer is irrelevant
special jurisdiction (art 7.1 and 7.2)
- applicable law also applies to culpa in contrahendo
51
Schrems
consumer (art 17-19)
- consumer contract
- dynamic interpretation consumer title (at least from B2C to B2B)
52
Ryanair v. DelayFix
consumer (art 17-19)
- consumer contract
- secondary EU consumer law does not impact BIa qualification
choice of court (art 25)
- substantive validity of choice of court (art 25) may be impacted by secondary EU consumer law
- EU-law sets down what a national consumer should look like
- exhaustive harmonisation
53
Pillar Securitisation
consumer (art 17-19)
- consumer contract
- secondary EU consumer law does not impact BIa qualification
- substantive validity of choice of court (art 25) may be impacted by secondary EU consumer law
54
Pammer Alpenhof
consumer (art 17-19)
- consumer contract
- directed activities directed at your state of domicile
- crucial criteria (non-exhaustive)
55
Emrek
consumer (art 17-19)
- consumer contract
- directed activities
- consumer doesn't have to show causal link (you don't have to actually buy something as a result of the website)
56
employment
- durable relation between individual and company (Shenavai)
- link between contract and place where activities are pursued (Shenavai)
- relationship of subordination = supervision and instruction (Holterman)
- services for and under the direction of another in return for renumeration (Holterman)
57
Holterman
employment (art 20-23)
- independent interpretation
- subordination = supervision and instruction
- dual capacity: once you're qualified as employee, you will be employee for the whole relationship for the purposes of BIa
58
Markt24
employment (art 20-23)
- intentions of parties to establish employment is sufficient
- contract is relevant, not the actual exercise
- place where work hasn't been carried out IF the rupture of the contract is NOT the fault of the employee (predictability)
59
Noguiera and Osacar v. Ryanair
employment (art 20-23)
- contracts of service
- you cannot look at employer as main anker for deciding the place of employment under art 21
- position of employee is emphasised
60
ROI Land Investments
employment (art 20-23)
- AG: anyone with direct/relevant interest in the correct execution = employer
- CJEU: in casu: no promissory note + issuer of the note was prior employer = employment contract
61
Jamieson
employment (art 20-23)
- torpedo
- lis pendens rules have precedence over protected categories
62
Kaifer Aislamientos
choice of court (art 25)
- consent needs to be clear and precise
63
Etihad and Flother
choice of court (art 25)
- consent needs to be clear and precise
- this can be an issue with rapid to and fro of downstream subagreements
64
boilerplate and midnight clauses
choice of court (art 25)
- don't have precise language required
- boilerplate = recycle the same choice of court and law clauses in effort to save time and money
- midnight = produced at the eleventh hour
65
Colzani
choice of court (art 25)
- formalisation of consent: writing
- parties should explicitly agree in GTC which must be clear and precise
- on the backside of the offer is written, but NOT clear and precise
- reasonable care: there needs to be made express reference to the GTC
66
CarsontheWeb
choice of court (art 25)
- formalisation of consent: writing
- click-wrapping
- show that reasonable care person could be aware of GTC
- pop-ups need to be saved/printed = durably consultable and storable
- right e-mail footer, properly functioning link, protocols for proactive authentication
67
Tilman and Unilever
choice of court (art 25)
- formalisation of consent: writing
- you must have drawn the attention of the other party to the GTC
- the clause needs to be durably consultable and durable
- you need to show the actual consent to the national court
- the fact that there is no click-wrap box is NOT conclusive
68
Segoura
choice of court (art 25)
- formalisation of consent: established practice
- the fact that the buyer doesn't specifically reject GTC does not suffice for there to be choice of court
- it can be established practice
- writing: it has to start with some written confirmation
69
Refcomp
choice of court (art 25)
- privity of choice of court
- chain of contracts
- choice of court does not have privity, unless it's established that third party had consented
70
Coreck Maritime
choice of court (art 25)
- no privity of choice of court
- one exception: bills of lading: choice of court DOES pass on into the chain
71
Apple Sales v. eBizzcuss
choice of court (art 25)
- abuse of dominant position (art 102 TFEU)
- the choice of court can extend to non-contractual obligations if the contract is so closely related to the conduct that you need to contractual terms to assess the non-contractual liability
72
CDC
choice of court (art 25)
- cartel damage (art 101 TFEU)
- follow-on claim
- choice of court committed to by victims does NOT bind third parties UNLESS there is subrogation
forum delicti (art 7.2)
- locus delicti commissi = place of the conclusion of the cartel
- abuse/forum shopping
multiple parties (art 8.1)
- used anchor defendant
- withdrawing the action against the defendant is NOT abuse of art 8.1
- collusion between claimant and anchor to fulfil/prolong art 8.1 IS abuse
73
Effer v. Kantner
forum contractus (art 7.1)
- applies even when the existence of a contract is in dispute
74
Handte
forum contractus (art 7.1)
- wide definition of contract
- contractual obligation is freely pursued between parties
75
Feniks
forum contractus (art 7.1)
- wide definition of contract
- the objective presence of a contract is enough for there to be a contractual relationship
- the cause of the action lies in the breach of the obligations toward the creditor to which the debtor agreed
76
Reitbauer
forum contractus (art 7.1)
- wide definition of contract
- Feniks applies even when there is NO knowledge or suggestion of fraud --> there is still a contractual relationship
77
flightright
forum contractus (art 7.1)
- wide definition of contract
- you have a contractual relationship even if you weren't aware that a third party was carrying out a contract
78
Sao Paulo Pannels
forum contractus (art 7.1)
- initial contract = anchor point for forum contractus
- if the initial contract doesn't qualify as a contract --> looking over the fence
79
De Bloos
forum contractus (art 7.1)
- where is place of performance?
- national courts ascertain place of performance (forum contractus) under the applicable law to the contract
- looking over the fence: 1) lex contractus 2) forum contractus in lex contractus?
- difficulties: cherry-picking and mosaic
80
Tessili v. Dunlop
forum contractus (art 7.1)
- looking over the fence technique (= conflicts method)
- the judges will have to use their own rules on applicable law for contracts
81
Corman-Collins
forum contractus (art 7.1)
- a selective distribution agreement = contract for provision of services
- all relations within the selective distribution agreement need to be litigated in the place where the services (should) have been delivered, unless choice of court
82
Shenavai
forum contractus (art 7.1)
- accessorium sequitur principale rule
- in contracts with a preponderant obligation --> the preponderant obligation will determine the place of performance
83
Bier
forum delicti (art 7.2)
- tort and delict --> the place where this occurred
- CJEU expands art 7.2 = ribble effect: claimant can choose
- Handlungsort = locus delicti commissi = where the harmful event took place
- Erfolgort = locus damni = where the damages occur
84
Kalfelis
forum delicti (art 7.2)
- tort = action which seeks to establish liability of the defendant and which are not related to a contract
closely connected cases (art 8)
- claims are so closely connected that it's expedient to hear and determine them together to avoid irreconcilable judgments
- sole object test
- national court must assess this in each individual case
85
Brownlie
forum delicti (art 7.2)
- ricochet damage
- forum non conveniens as a safety valve
86
Dumez France
forum delicti (art 7.2)
- rule must be limited to places where the court has a direct link
- direct victim or direct consequences
- indirect victim for indirect consequences can sue, but only on the basis of art 4 or locus delicti commissi art 7.2
87
Marinari
forum delicti (art 7.2)
- direct victim doesn't have an extra forum on the indirect damage
88
Shevill
forum delicti (art 7.2)
- every EU MS where damage has occurred can claim jurisdiction on the basis of locus damni
- but only to the extent of the damage that occurred within their specific district
- mosaic
89
e-Date and Martinez (Kylie Minogue)
forum delicti (art 7.2)
- for the infringement of personality rights on an online website you have 3 options:
1. sue in the MS of the publisher for all damages
2. sue in the MS of the injured person's centre of interest for all damages
3. Shevill rule
90
Wintersteiger
forum delicti (art 7.2)
- e-Date can only apply for the infringement of personality rights on an online website
91
Bolagsupplysningen
forum delicti (art 7.2)
- the rectification can only be claimed in a MS with jurisdiction to rule over the entirety of the application for compensation of damage
- a legal person can sue for the entire harm for online infringements in its MS of centre of interest
- its centre of interest = registered office > where it carries out the main part of its activities
- forum shopping
92
Gtflix TV
forum delicti (art 7.2)
- a claimant who requests both rectification and damages can continue to use the Shevill rule for the damages
- subject to the accessibility of the site
93
Mittelbayerischer Verlag
forum delicti (art 7.2)
- there needs to be an identification of people you could have insulted
94
Folien Fischer
forum delicti (art 7.2)
- negative declarations of tort are covered
- also applies if damage hasn't yet occurred
95
ÖFAB
forum delicti (art 7.2)
- locus delicti commissi in cases of tort by omission = the place where the tortfeasor's action ought to have taken place
96
Universal Music
forum delicti (art 7.2)
- purely economic damage
- the mere existence of a bank account is not a sufficient element
97
Kolassa
forum delicti (art 7.2)
- more flexible approach toward locus damni in cases of purely economic damage
- mere fact that a claimant has suffered financial consequences in a legal district does not justify attribution of jurisdiction to that district
98
Lober v. Barclays
forum delicti (art 7.2)
- which Austrian court?
99
Kainz
forum delicti (art 7.2)
- product liability
- locus delicti commissi in case of damaged product = place where the event which damaged the product itself occurred = place where product was manufactured
100
Volkswagen
forum delicti (art 7.2)
- CJEU didn't follow minimal contract rule
- it's about reduced value of car as such, not reduced monetary value --> direct damage in consumer's domicile = potential for locus damni jurisdiction
- prof disagrees: pure money thing
101
Vereniging van Effectenbezitters
forum delicti (art 7.2)
- CJEU reigns in jurisdiction using statutory reporting obligations (linked it to locus damni)
102
flyLAL
forum delicti (art 7.2)
branch jurisdiction (art 7.5)
- in the case of tort based claims: branch needs to participate in at least some of the actions of the tort
103
Brogsitter
special jurisdiction (art 7.1 and 7.2)
- some liabilities are neither art 7.1 or 7.2 --> do they pigeon tale? either one or the other?
104
Wikingerhof
special jurisdiction (art 7.1 and 7.2) and choice of court (art 25)
- change of general contractual terms via popup on website --> change of court
- there needs to be consent
- was the complaint of Wikingerhof about abuse of dominant position art 7.1 or 7.2?
- Wikingerhof wanted forum delicti (7.2) so they could use locus damni
105
Roche
closely connected cases (art 8)
- closely connected = same situation of law and fact
- European patent continues to be governed by the national law of each MS
106
Solvay
closely connected cases (art 8)
- risk for irreconcilable judgments
- confirmed for IP rights
107
Reisch Montage
closely connected cases (art 8)
- even when action against anchor defendant is inadmissible from the start under national law it can meet art 8.1 criteria
- even if anchor defendant raises no substantive defence --> is NOT an abuse of anchor mechanism
108
Municipio de Mariano
lis alibi pendens (art 33-34)
- it needs to be either lis alibi pendens or related action (in casu related action)
- Anerkennungsprognose = looking over the fence of applicable law: will tje court be able to recognise the other judgment under their national rules?
- proper administration of justice
109
Petrobas
lis alibi pendens (art 33-34)
- stay must be in the interest for the sound administration of justice
110
De Cavel
provisional and protective measures (art 35)
- art 35 cannot bring excluded subject matter within the scope of BIa
111
Reichert
provisional and protective measures (art 35)
- PPM = preserve a factual or legal situation
112
Belo Horizonte
provisional and protective measures (art 35)
- different interpretation of PPM between MS
- seizure of documents = PPM
- access to documents is NOT PPM: goes further than provisional impact
113
PPM conditions
- measure has to be provisional or protective
- real connecting link between subject matter of the measures and the territorial jurisdiction (Van Uden) (doesn't have to be territorial sensu stricto)
- it needs to be a judgment = Denilauler criteria: has to follow an inquire of adversarial proceedings
114
Krombach v. Bamberski
recognition and enforcement
- absence of defence CAN justify refusal
115
Trade Agency
recognition and enforcement
- public policy can NEVER be called upon to express absolute rejection of a legal mechanism available in another MS
- refusal must be ad hoc in the particular circumstances of the case
116
Meroni
recognition and enforcement
- WFO's
- refusal cannot be absolute
- needs to be in the specific circumstances of the case
