Category: Private Law

A Harmonised European (technical) Standard-Provision of EU Law! (Judgment in C-613/14 James Elliott Construction)

By Megi Medzmariashvili

Is a harmonised technical standard (HTS) developed in response to the Commission’s mandate, a provision of EU Law? Up until recently, this issue has not been raised before the CJEU, much to academics’ surprise working in this field.  Contractual litigation in James Elliott Construction became a trigger for the inquiry about the legal nature of HTS. The Court handed down its judgment on 27 October 2016, nine months after the Advocate General’s (AG) Opinion was published. Two blog posts discussed the AG’s Opinion and offered divergent analysis thereof.

The judgment, in essence, followed the AG’s Opinion resulting in the finding that an HTS is a part of EU law. The Court’s line of argumentation, as opposed to the AG’s, is remarkably cautious. In short, the Court regarded privately produced technical rule-HTS, as a provision of EU law.  At the same time, the ECJ was extremely keen to prevent an HTS from having effects on a contractual relationship or on the Irish Law on Sale of Goods. Continue reading

Harmonised European Standards and the EU Court of Justice: Beware Not to Open Pandora’s Box

By Bardo Schettini Gherardini

As already stressed by Megi Medzmariashvili in her post of 1st March 2016, the question of whether the Court of Justice of the European Union (‘the Court’ or ‘CJEU’) has jurisdiction to give a preliminary ruling on the interpretation of a harmonised technical standard (‘HTS’) adopted by the European Committee for Standardisation (‘CEN’) is, for the first time, raised in Case C-613/14, James Elliot Construction Ltd v Irish Asphalt Limited.

As Director – Legal Affairs of both CEN and CENELEC (the European Committee for Electrotechnical Standardization), I would like to give an insider’s view on the European standardization system and to expose a more critical approach to the Opinion delivered by the Advocate General (‘AG’) Campos Sanchez-Bordona on 28 January 2016.  The AG suggested, in reference to the first question referred for a preliminary ruling, that the Court must declare that it has jurisdiction for the main reason that the HTSs should be regarded as acts of the institutions, bodies, offices or agencies of the Union for the purposes of Article 267 of the Treaty on the functioning of the Union (‘TFEU’), which is the primary law basis of the cooperation between the CJEU and the national courts via the preliminary ruling system. The opinion of the AG is based on three arguments that I would like to comment on, just after insisting on some essential elements of background on the way HTSs are produced and how CEN and the other European standardisation bodies are working.   Continue reading

Opening the ECJ’s Door to Harmonised European Standards? (Opinion of the AG in C-613/14 James Elliott Construction)

By Megi Medzmariashvili

The James Elliott Construction case brings before the Court of Justice (ECJ), for the first time, the issue of whether it is within the Court’s jurisdiction to give preliminary rulings on harmonised technical standards (HSs). This contribution will analyse Advocate General (AG) Campos Sánchez-Bordona’s Opinion in this case, in particular its potential effects on the legal status and copyright protection of HSs. It will also discuss, more generally, the legality of the delegation of rule-making powers to the European Standard Bodies (ESBs). If the Court follows the AG’s opinion it will most certainly craft a New Approach to the New Approach. Continue reading

Neues aus dem Elfenbeinturm: December 2015

Workshop „The Age of Austerity: A New Challenge for State Powers“

University of Edinburgh, 30 March 2016. Deadline for abstract submissions: 20 December 2015.

CJICL Conference „Public and Private Power“

University of Cambridge, 8-9 April 2016. Deadline for abstract submissions: 10 January 2016.

Workshop „The preliminary reference procedure as a compliance mechanism of EU environmental law“

Brussels, 17 June 2016. Deadline for abstract submissions: 15 January 2016.

Conference „Building Consensus on European Consensus“

European University Institute, Florence, 1-2 June 2016. Deadline for abstract submissions: 31 January 2016.

Doctoral Colloquium „Responsibility in International and European Law, Philosophy and History“

University of Fribourg, 11-12 November 2016. Deadline for abstract submissions: 1 March 2016.

EELF Conference „Procedural Environmental Rights: Principle X in Theory and Practice“

Wrocław University, 14-16 September 2016. Deadline for abstract submissions: 15 March 2016.

Conference „Intra-EU BITs and Intra-EU Disputes“

University of Vienna, 7 March 2016. (Paid) registration needed.

Neues aus dem Elfenbeinturm: August 2015

Workshop: “International Law and Domestic Law-Making Processes”

University of Basel, 4 September 2015. Deadline for registration: 24 August 2015.

Workshop “Safety and Liability Rules in European Ski Areas”

University of Trento, 11-12 December 2015. Deadline for abstract submissions: 15 September 2015.

Conference “Constitutional History: Comparative Perspectives”

University of Illinois, 12-13 April 2016. Deadline for abstract submissions: 1 November 2015.

Neues aus dem Elfenbeinturm: November 2014

Conference “International Litigation in Europe: the Brussels I Recast as a panacea?”

Verona University, 28-29 November 2014. Deadline for registration: 20 November 2014.

Workshop “L’ordre juridique de l’Union européenne sous l’angle de son action extérieure/The Legal Order of the European Union from the Perspective of Its External Action”

University of Luxembourg, 24 November 2014. (Free) registration required.

The Treaty of Lisbon and EU Criminal Law – Five Years On

University of Innsbruck, 1 December 2014. (Free) registration required.

Third REALaw Research Forum “Judicial Coherence in the European Union

University of Utrecht, 30 January 2015. Deadline for abstract submission: 1 December 2014.

13th Jean Monnet Seminar “EU Law and Risk Regulation”

Inter-University Center, Dubrovnik, 19-25 April 2015. Deadline for paper proposal submissions: 15 January 2015.

The Commission’s proposal for a directive on actions for damages caused by infringements of antitrust law in Member States

Infringements of antitrust law can cause serious harm to consumers and businesses in the European Union. Under EU law the victims of infringements of antitrust law can claim compensation for the actual loss, for loss of profit and payment of interest accruing from the moment of time the harm occurred until the moment compensation is paid. Actions for damages for an infringement of national and EU antitrust law are governed by the national law of the Member States. To ensure the effectiveness of the right of the victims to claim damages the European Commission presented on 11 June 2013 a proposal for a directive on certain rules governing actions for damages under national law for infringements of the competition law provisions of the Member States and of the European Union (COM (2013) 404 final). Continue reading

Sturgeon again, Grand Chamber rules on compensation for delayed flights in Folkerts

Here’s another Court judgment on the infamous (or clarifying, depending on your perspective) Court ruling in Sturgeon. Last November, we reported on the ruling in the joined cases Nelson (C-581/10) and TUI Travel (C-629/10), in which the Court confirmed the judgment in Sturgeon. The Court held that Airline Passengers have the right to the fixed monetary compensation under Article 7(1) of Regulation 261/2004 (the Regulation) in case of a delay of three hours or more. This time, it’s about the question at which stage of the carriage the delay must occur. For the purpose of entitlement to compensation under Article 7(1), is the length of the delay in reaching the final destination alone determinant? Or does entitlement to compensation for such a delay additionally requires that the conditions set out in Article 6(1) of the regulation be met, that is to say, that the departure of the flight in question was already delayed beyond the limits set out in Article 6(1)? If not, for the purpose of determining whether there was a delay, in the case of a flight consisting of several stages, should reference be made to the individual stages or to the distance to the final destination?

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CJEU confirms Sturgeon: compensation due also for delayed flights

The Airlines lost, end of story. I could stop there, refer you to our earlier post and conclude by expressing the hope that airlines will acknowledge defeat and in the future pay compensation when compensation is due under Regulation 261/2004. However, being the academic minded blogger, I’ll go into more detail on the joined cases Nelson (C-581/10) and TUI Travel (C-629/10) below.

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The CJEU overshoots the mark of consumer protection: ‘Winner’ means WINNER and ‘prize’ means FREE PRIZE (C-428/11)

In its Judgment of 18 October 2012 in case C-428/11 Purely Creative and Others v Office of Fair Trading, the CJEU was confronted with the interpretation of consumer protection rules in the field of aggressive commercial practices in a distant sales scenario. The judgment places a severe restriction on commercial practices that include the award of ‘prizes’ to targeted consumers, by determing that “the prohibition on making the consumer bear any cost whatsoever is absolute, whether it be the cost of a stamp or of a simple telephone conversation”. In my opinion, the CJEU has overshot the mark of consumer protection.

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Solvay / Honeywell: cross border provisional relief under Brussels I

In its Solvay/Honeywell judgment (C-616/10) of 12 July, the CJEU decided on several important issues regarding the Brussels I Regulation. Those active in international commercial litigation, particularly patent infringement proceedings, will be interested in this case. The questions in Solvay concern the application of several ‘Brussels I’ rules of jurisdiction to cross-border patent infringement proceedings. The CJEU gets the chance to clarify some questions-left-open related to the 2006 cases GAT v. LuK (C-4/03 ) and Roche v. Primus (C-539/03). Unfortunately, the ruling in Solvay itself also leaves several questions unanswered. I wonder especially whether it was necessary for the CJEU to ‘reformulate’ the questions put before it. I’m afraid it looks like the ‘reformulation’ has obscured the view of what is really going on here.

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One rule to rule them all: the report on Rome I and voluntary assignment

As was pointed out in an earlier post, the Commission report under Article 27(2) Rome I Regulation (Regulation (EC) 593/2008 on the law applicable to contractual obligations) will be based on a recent study by the BIICL titled “Study on the question of effectiveness of an assignment or subrogation of a claim against third parties and the priority of the assigned or subrogated claim over a right of another person”. Although the title is a bit misleading (as the study itself indicates, the study deals not with the effectiveness but with the law applicable to the effectiveness of an assignment or subrogation of a claim against third parties and to priority issues), this is a thorough and excellent study. The report consists of a collection of statistical data, an EU-wide empirical analysis, national reports from twelve Member States and a comprehensive analysis of the question of whether it would be desirable to amend Art. 14 Rome I Regulation to include the third-party aspects of assignment.

The results of the questionnaire show that a vast majority of stakeholders who addressed this particular issue indicated that a uniform EU solution would be of positive impact to their business. Reduction of legal costs and due diligence, increased legal certainty and higher transaction volumes are regarded as positive effects of the introduction of a uniform rule on the property aspects of an assignment. In view of this, it seems highly unlikely that those who argue in favour of preserving the status quo (the description of which can be found in the earlier post) will win the day. The maxim ‘any rule is better than no rule at all’ wins at the expense of the principle ‘no rule better than a bad rule’. In other words,  legal certainty is a commodity to be valued in itself and there is a general need for a rule that covers all proprietary aspects of assignment. Which rule will it be?

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VALE: a never ending story on free movement of companies within the EU finally ended?

On 12 July 2012 the European Court of Justice (ECJ) ruled in the VALE case (C-378/10) that

“Articles 49 TFEU and 54 TFEU are to be interpreted as precluding national legislation which enables companies established under national law to convert, but does not allow, in a general manner, companies governed by the law of another Member State to convert to companies governed by national law by incorporating such a company.”

The case concerned a cross-border conversion of a company established under Italian law, VALE Construzioni Srl, into a company incorporated under Hungarian law, VALE Építési kft. Under Italian law it is possible for a company to convert into a company established under foreign law. Under Hungarian law only companies incorporated under the law of Hungary are allowed to convert. The VALE case is the ‘mirror image’ of the Cartesio case (C-210/06) which concerns a transfer of a registered office of a company under Hungarian law to Italy without a conversion. In the Vale case the Court stated that a Member State may restrict a company governed by its law to retain the status of the company established under the law of that Member State if the company intends to move its seat to another Member State, thereby breaking the connecting factor required under the national law of the Member State of incorporation. However, the Member State of origin of that company cannot prevent a company from converting itself into a company governed by the law of the other Member State, to the extent that it is permitted under that law to do so.

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Case C-171/11 Fra.bo: Horizontal Effect of Article 34 TFEU

Yesterday, the Court decided to give horizontal effect to Article 34 TFEU on the free movement of goods. In the Fra.bo case, the Oberlandesgericht Düsseldorf had asked whether a private-law association (DVGW) ought to be subject to the principle of free movement of goods. The organisation at issue operates both to draw up technical standards for products used in the drinking water supply sector and to certify products based on these standards.

As Laurens has pointed out in his post on the Advocate General’s opinion, the Court has accepted such horizontal effect for the other Treaty freedoms, but not yet for the case of the free movement of goods. Advocate General Trstenjak, however, suggested in her Opinion to extend the reasoning of cases like Bosman, Viking and Laval by analogy. Based on their horizontal effect, fundamental freedoms could thus be imposed in cases where non-public organisations held the power to draw up certain kinds of collective rules. In the present case, the German private organization DVGW possessed in her view a de facto competence to determine what fittings could be offered for sale on the market in pipes and accessories for drinking water supply in Germany (para 41). The Advocate General pointed out that horizontal effect was required by the effet utile of European Union law because (paras 46 ff.) the abolition of obstacles to trade imposed on Member States might otherwise be compromised by obstacles erected by private parties. Also, the fact that some Member States would rely on public standardisation bodies while others turn to private organisations may lead to inequalities in the application of EU law. Continue reading

Rome I and third-party aspects of voluntary assignment

Under Article 27(2) of the Rome I Regulation (Regulation (EC) 593/2008 on the law applicable to contractual obligations), the Commission is charged with the task to submit to the EP, the Council and the European Economic and Social Committee a report on the proprietary aspects of voluntary assignment. The Commission report under Article 27(2) Rome I will be based on a comprehensive study that has just been released titled “Study on the question of effectiveness of an assignment or subrogation of a claim against third parties and the priority of the assigned or subrogated claim over a right of another person”. This study shall serve as a potential future proposal to amend Art. 14 Rome I Regulation to provide for a new harmonized conflict of laws solution for the third-party aspects of assignment. Why was this necessary?

The rule in art. 14 Rome I Regulation is concerned with the law applicable to assignment of debt and subrogation. As far as the third-party aspects are concerned however, no uniform solution to a conflict–rule could be agreed upon in the drafting process of Rome I and, consequently, the Rome I Regulation (save a reference in recital 38) doesn’t regulate the proprietary aspects of assignment. As a result, Member States currently adopt different approaches. The current incomplete conflict of laws solution in Article 14 Rome I gives rise to various problems, as described in the study. To end this situation, the Commission has to deliver a report (which, incidentally, was due 17 June 2010) accompanied with, if appropriate, a proposal to amend the Rome I Regulation and an impact assessment.

When the Commission will deliver its report is unclear at this point but there is no doubt that it will rely heavily on this study. We will go into more detail in subsequent posts.

Compensation of passengers for delayed flights – AG confirms Sturgeon case

As a firm blow to airlines trying to dodge the Sturgeon decision, AG Bot’s opinion in the joined cases C-581/10 and C-629/10 has already been called a ‘Luxembourgian punch on the nose’ and ‘a kick in the Bot’. In his opinion, AG Bot essentially advises the Court to confirm its earlier Sturgeon decision (Cases C-402/07 and C-432/07). The cases concern the interpretation of Articles 5, 6 and 7 of Regulation 261/2004 on air passengers compensation. Although frequently named the ‘Denied-boarding’ Regulation, the Court ruled in Sturgeon that passengers whose flights are delayed may also rely on the right to compensation laid down in Article 7 where they suffer, on account of such flights, a loss of time equal to or in excess of three hours (paragraph 61 of Sturgeon). Not surprisingly, airlines have since argued that the ruling in Sturgeon is contrary to the principles of legal certainty and proportionality, and, moreover, that it is inconsistent with both the 2006 IATA ruling and the Montreal Convention for the Unification of Certain Rules for International Carriage by Air (ratified by the EC).

To be fair, the wording of the Regulation does not directly provide for the compensation right to passengers whose flights are delayed. In that sense, as indeed the airlines argue, the Court has taken a bold step in Sturgeon and has maybe, in interpreting the Regulation beyond its literal wording, overstepped its powers. AG Bot, however, doesn’t see any reason for the Court to deviate from its approach in Sturgeon and states that nothing new which might call into question the interpretation that the Court gave in Sturgeon has been presented (point 39). The AG notes that the disputes in these cases show that air carriers refuse to apply that judgment and to compensate passengers finding themselves in such situations (i.e. situations of delay instead of cancellation or denied-boarding). The AG takes the view that Articles 5, 6 and 7 of the Regulation (as interpreted in Sturgeon) are compatible with the IATA ruling, with the Montreal Convention, with the principle of proportionality and with the principle of legal certainty (point 29-49 and 67).

Meanwhile, the Attorney General (AG) at the Dutch Hoge Raad (Supreme Court of the Netherlands) has delivered his opinion (in Dutch) in several cases pending before the Supreme Court concerning compensation under Art. 7 for delayed flights. The opinion was delivered exactly four days before AG Bot’s opinion but follows the same pattern. The AG rejected all of the airlines’ arguments against the Sturgeon ruling..

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