Cross-border civil litigation after Brexit: analysis of the UK government’s proposals

Professor Steve Peers

Imagine you’re a prominent UK politician. You spend most of your time ranting on a radio station in the UK or grovelling in the USA, occasionally showing up in France or Belgium to do your actual full-time job. You’re now getting a divorce from your German wife. Which court rules on matters concerning divorce and access to children – and which law applies?

This dispute would be part of the broader topic of cross-border civil litigation (or private international law), which is the subject of the UK government’s latest position paper on the Brexit talks. This paper gives some interesting hints about how the UK seeks a close relationship with the EU after Brexit, while also leaving some key issues rather vague.

First of all, it’s necessary to point out that the paper doesn’t concern the future of dispute settlement between the UK and the EU after Brexit. That’s the subject of another position paper coming very soon. Rather it concerns how cross-border disputes between private citizens or companies in the UK or EU will be dealt with after Brexit.

The paper usefully sets out which EU laws in this area the UK has currently opted into, in particular: the general rules on civil and commercial jurisdiction and conflict of laws; the special rules on insolvency disputes and divorce/child access, maintenance, and stalking orders; and related laws on simplified litigation, service of documents, legal aid, evidence, legal aid, mediation and the ‘European Judicial Network’ (a talking shop on the operation of these laws). (For an overview of these issues in the Brexit context see the recent House of Lords report).

Note that the UK has opted out of some other EU laws in this area, in particular those concerning marital property after divorce (and the property of civil partnerships which ended), inheritance and conflict of divorce law. (For an overview of EU law in this area as a whole, see the chapter in the second volume of my book on EU Justice and Home Affairs Law).

The paper is mainly about the future UK/EU relationship in this area, not withdrawal from the EU as such. But there's a bit on that issue at the end, in response to the EU’s position paper on the UK’s exit from the law in this area. Of course, the UK government is correct to say that there is no need for any such transition arrangements, to the extent that the UK still participates in the law in this field after Brexit. But then, the EU won't discuss any aspects of its future relationship with the UK until there is ‘sufficient progress’ on the key issues of the UK’s so-called ‘divorce bill’ and the status of UK and EU citizens. (If and when the EU and UK do agree on post-Brexit treaties in this area, note that the EU usually votes by a qualified majority, except as regards family law, where there is a veto. At least in key areas, the ECJ has ruled that Member State ratification of such treaties is not necessary, since the EU is exclusively competent).

There’s likely to be a need to bridge the gap between Brexit Day and any future agreement between the UK and the EU. This will probably take the form of some transitional extension of current EU law, as part of the Brexit withdrawal treaty. But the position paper doesn’t mention this issue at all – perhaps because the UK government has not fully agreed on the details, and perhaps because the EU side insists that the ECJ would still have jurisdiction during that period.

Future relationship

So what relationship does the UK government want with the EU in future? The papers calls for a ‘new partnership…reflecting our close existing relationship’, but does not detail which laws the UK wants to continue participating in.  One hopes that the government will at least tell the EU which laws it wants to continue applying. 

There’s one thing the UK government clearly doesn’t want though: the continued ‘direct’ jurisdiction of the ECJ. (The notion of ‘direct’ jurisdiction isn’t explained explicitly, but we can deduce what the government will accept – see further below).  The reader gets the distinct impression that the UK is happy to continue participating in all the EU laws it has signed up to already, except for removing the ECJ’s direct jurisdiction. It’s a bit like tearing down and rebuilding a house, in order to change one brick.

The paper doesn’t address an obvious question: what if an existing EU law is revised post Brexit? This point isn't hypothetical. There's a proposal to revise the current EU law on divorce and child access already. The UK has already opted in to negotiations. But negotiations are slow, and might not conclude before Brexit Day. Other laws in this field are negotiated over time. How to address this topic?

International treaties

The paper seems keen to reassure those who litigate in the UK (in particular, London) that the UK will still be ‘open for business’ in this field after Brexit. To that end, the government confirms that it will remain a party to a list of international treaties in the field (as distinct from EU law), drawn up in the auspices of an international body which focusses on cross-border civil litigation – the Hague Conference on Private International Law, including the important Hague Convention on child abduction. For most of these treaties, this will be simple, because the UK is a party to them in its own right, not as an EU Member State. For some others, the UK participates only as an EU Member State, although it ought to be an easy transition to participating in its own name: it can simply sign and ratify them on Brexit Day.

However, the UK also wants to stay part of the Lugano Convention - which extends an earlier version of the main EU law on civil and commercial jurisdiction to relations between the EU and EFTA states (Norway, Iceland, and Switzerland – along with EU Member State Denmark for convoluted reasons). This is another kettle of fish. According to that Convention, to sign up in its own name, the UK either has to become an EFTA state (which is a big issue in itself, since EFTA is a trade agreement) or wangle a special invitation to sign up. And as the government’s position paper acknowledges, it’s awkward that the Convention only relates to an earlier version of that EU law.

Signing up to the Lugano Convention also raises an issue about the ECJ. The Convention states that the courts of non-EU states must ‘pay due account’ to ECJ judgments. So we can deduce that the UK government does not believe that such an obligation violates its ‘red line’ against ‘direct jurisdiction’ of the ECJ. It might have been better to say this explicitly, and to propose it as a template for UK/EU relations in this field, given that the UK apparently wants to keep participation in other relevant EU laws as well. Indeed, it might also be a template for other areas where the UK seeks to continue participation in EU laws as a non-EU state. Perhaps the forthcoming paper on EU/UK dispute settlement will say more on this.

Furthermore, the ECJ clause in the Lugano Convention is similar (but not identical) to the ECJ clause in the EU Withdrawal Bill as proposed by the government – which says that pre-Brexit ECJ rulings stay binding (subject to the UK Supreme Court possibly overruling them, or the government or parliament overruling them), while post-Brexit ECJ may be taken into account by courts in the UK.

This may be enough of a compromise to satisfy hardline Brexiteers; we’ll see. It ought to be acceptable to the EU side, given that it’s been accepted in the context of relations with EFTA states for nearly thirty years (the first version of the Lugano Convention dates back to 1988). But then, the UK is asking for a closer relationship in this field of law than any other non-EU country. In any event, the areas of law where the EU insists on an ECJ role (citizens’ rights, the ‘divorce bill’, a transitional deal) will be more difficult to agree. Time will tell if talks eventually founder – either on those ECJ issues, or indeed on the bill itself.

Barnard & Peers: chapter 27

JHA4: chapter II:8

Photo credit: Metro

Brexit and business and human rights litigation in England

Anil Yilmaz Vastardis, Lecturer in Law, Human Rights Centre, University of Essex

In wake of the UK’s EU membership referendum result, people from all walks of life are wondering what will happen next. While a big uncertainty looms over the political questions surrounding the process of the UK’s exit from the EU, the repercussions go far beyond the UK – and  some of those wondering “what next” are likely overseas victims of human rights abuses by British corporations. The question remains as to what happens to all the EU law that either the UK has transposed into its legal order via acts of parliament, or that have direct application in the UK, such as EU Regulations.

Brussels I Regulation (Recast) is one of many such EU law instruments. It prescribes the rules on jurisdiction of member state courts, as well as the rules on the recognition and enforcement of judgments in civil and commercial matters within the EU. It has been predicted that the UK's adherence to the Brussels I regime “is likely to be significantly modified, if not entirely replaced, in the event of Brexit.” The authors of that piece outline the different scenarios on the fate of the English rules on civil jurisdiction post-Brexit. The course chosen may have an impact on the ability of human rights victims overseas to bring suit against multinational enterprises (MNEs) in UK courts.

Jurisdiction over Civil Liability Claims against Multinationals domiciled in England

Rights advocates are increasingly bringing lawsuits in the global north to hold MNEs accountable for human rights harm caused by their overseas subsidiaries. Among the reasons for pursuing the MNE in its “home” state (the state where they are domiciled – see Article 60 of Brussels I) are the existence of a dysfunctional legal system in the host state (place where the harm occurred) and/or a defunct or underfunded subsidiary. England is a popular jurisdiction for bringing such suits against UK domiciled MNEs. It is home to many multinationals and it offers advantages for creative litigation. Victims and their lawyers generally seek reparations from the parent entity on the basis of common law tort principles. While rights defenders are eager to hold parent companies accountable for harm inflicted by their subsidiaries, the legal landscape in the global north is fraught with obstacles to holding parent companies liable. Among them are the rules on civil jurisdiction.

In England, the forum non conveniens doctrine (FNC) used to be a major challenge to bringing suit against an MNE domiciled in England for harm caused overseas by its subsidiaries. The FNC allows English courts to refuse to exercise jurisdiction over a case if another forum is clearly better suited to adjudicate the case, due to for instance location of evidence and witnesses. A number of cases brought in England were protracted due to a battle over FNC. Claimants had to demonstrate substantial denial of justice in the host state legal system in order to convince English courts to exercise jurisdiction (see Connely v RTZ Corporation, Lubbe v Cape Plc).

Article 2 of Brussels I and its interpretation by the Court of Justice of the EU (CJEU) in Owusu v Jackson blocked the use of the FNC doctrine by English courts in civil liability suits filed against MNEs domiciled in England. According to Article 2 ‘persons domiciled in a Member State shall, whatever their nationality, be sued in the courts of that Member State.’ There is no indication here as to whether this rule would prevail if the lawsuit concerns events that occurred or harm suffered overseas (i.e. outside the European Union). In Owusu v Jackson, the CJEU held that Article 2 precludes a member state court from "declining  to exercise jurisdiction on the ground that a court in a non-EU would be a more appropriate forum" and thus jurisdiction shall be exercised over the UK domiciled MNE even if the dispute has certain connections with a state outside the EU.

Years need not be wasted fighting a jurisdiction battle

Article 2, read together with Owusu, brought an end to the protracted litigation over whether a lawsuit against an MNE domiciled in England should be adjudicated by English courts or the courts of the host state. Admittedly, adjudicating the dispute before English courts does not guarantee the liability of the parent company. That depends on whether the facts of the case warrant holding the parent liable under the law applicable to the substance of the case (which is likely to be the law of the country where the harm occurred – see Article 4 of the Rome II Regulation).

Nevertheless, the defeat of the FNC defence was not in vein. Even though we are yet to see a ruling that holds the parent company liable for harm caused by an overseas subsidiary, lawyers continue filing strategic cases with English courts with the confidence that they would not lose years battling an FNC challenge. MNEs are less able to protract litigation through jurisdictional questions, draining victims of the funds necessary to support the litigation. Brussels I gives victims a real chance to plead their case before home state courts, and thus attract more public attention to the alleged wrongdoings of MNEs that sometimes paint a ‘socially responsible’ picture to their consumer base in the global north. Finally, the concern of fighting such a claim on its substance pushes major MNEs like Royal Dutch Shell to offer out of court settlements to victims for amounts much greater than they would have offered in the absence of such concern. Although such settlements prevent the development of legal precedent in this area, they provide much needed relief to individual victims.

If the UK leaves the EU and no longer complies with Brussels I, without a post-exit deal between the two entities that incorporates equivalent provisions, the FNC defence is likely to be resurrected in business and human rights litigation against MNEs domiciled in England. This would be a big step back for access to justice in England for overseas victims of business abuse.

Barnard & Peers: chapter 9, chapter 27

Photo credit: the times.com

JHA4: chapter II:8

Which data protection and consumer law applies to Amazon? Comments on the VKI v Amazon judgment

Lorna Woods, Professor of Internet Law, University of Essex

The recent CJEU judgment in VKI v Amazon concerns jurisdiction both in the context of conflict of laws (applicable consumer laws) and the Data Protection Directive.  Essentially, the Court of Justice had to decide which Member State’s data protection law should apply where goods are sold across national borders but within the EU. In this, it forms part of a stream of case law (both decided and pending), dealing with the powers of states (and their institutions) to protect those within their boundaries notwithstanding the digital internal market.

Facts

The case concerned Amazon, a well-known large company engaged in on-line selling. It has a branch established in Luxembourg.  It has a domain name ending ‘.de’ and there is a German language page.  It concludes sales with customers in Austria. The company has no registered address in Austria.  Whenever a customer buys goods via Amazon the transaction is governed by Amazon’s unilaterally imposed standard terms and conditions. One term in the agreement is that the law applicable to the contract is that of Luxembourg. 

A consumer protection body in Austria (VKI) sought to challenge this: Austrian law provides higher protection for the consumer than the equivalent Luxembourgish law and it sought to injunct Amazon on the basis of Directive 2009/22/EC on injunctions for the protection of consumers’ interests through an action brought before the Austrian courts. Amazon countered that it has no legal connection with Austria – it is not established there.  While there were questions regarding the applicable law and the fairness of the jurisdiction clause in the contract in the light of the Unfair Contract Terms Directive, there was another issue concerning data protection. There were clauses in Amazon’s standard terms and conditions which indicated that data might be exchanged with credit-risk assessment and financial services companies in Germany and Switzerland.  Again VKI argued that Austrian data protection rules should apply.

Questions Referred

While on the face of it, the matter might seem to be one of contract law therefore governed by the Rome I Regulation on the law applicable to contractual obligations, the form of relief sought – the injunction – might seem to bring the question within the Rome II Regulation, which regulates the law applicable to non-contractual obligations – a fact which might affect the outcome in the case.  The national court asked whether an action for an injunction fell within Rome II and if so, where the damage might said to have taken place so as determine jurisdiction.  Irrespective of the outcome to that question, the referring court also asked about the impact of the Unfair Contract Terms Directive on the jurisdiction clause. It likewise also wanted to know whether the processing of data should be regulated by Luxembourg alone, or must the processor ‘also comply with the data protection rules of those Member States to which its commercial activities are directed?’

Judgment

The ECJ dealt with the questions on Rome I and II together.  It noted that they should be interpreted consistently with one another, as well as the Brussels I Regulation (which concerns the separate question of which country’s court has jurisdiction in cross-border cases).  The Court referred to its previous case law in relation to the previous Brussels Convention, and the Brussels I Regulation replacing the Convention, to conclude that an action for injunction within the terms of Directive 2009/22/EC (on the protection of consumers’ interests) falls within the meaning of a non-contractual obligation for the purposes of Rome II.  Article 6 of the Rome II Regulation deals with unfair competition.  In that circumstance, the law applicable is that ‘of the country where competitive relations or the collective interests of consumers are, or are likely to be, affected’.  The Court followed the Advocate General (Opinion, para 73) to hold that Article 6(1) covers the use of unfair terms inserted in standard terms and conditions, as ‘this is likely to affect the collective interests of consumers as a group and hence to influence the conditions of competition on the market’ (para 42). Here the relevant country is that where the consumers to whom the undertaking directs its activities reside and who are protected by the relevant consumer protection body (para 43).

Article 4(3) of the Rome II Regulation states that the law of another country applies if it is clear that the tort is manifestly more closely connected with it.  The ECJ approved the approach of the Advocate General (para 77) where he advised that Article 4(3) is not well suited to unfair competition. Article 6 is aimed at protecting collective interests and cannot be displaced by individual agreement (para 45).  Allowing the term of a contract to constitute ‘closer connection’ for the purposes of Article 4(3) would mean that such parties would be able to avoid the conditions for ‘freedom of choice’ set down in Article 14 Rome II.

The question of which law applies to the assessment of the unfairness of the contractual terms, however, falls under Rome I, whether or not it applies to a collective or individual action.

The Court then considered the Unfair Contract Terms Directive (Directive 93/13). That Directive contains the principle that a contractual term which has not been individually negotiated – that is, drafted in advance by the seller/supplier - must be regarded as unfair if it causes a significant imbalance to the detriment of the consumer. The Court agreed with the Advocate General (Opinion para 84) that the terms in issue here fell within that definition (para 63). The question of unfairness is to be determined on the facts by the national court within the scope of criteria determined by the Court of Justice. Since choice of law clauses are in principle permissible, such clauses are only unfair if its wording or context creates an imbalance – so if it is not drafted in intelligible language or if it seeks to deprive consumers of protections from which it would not be possible to derogate.  Here, this means that in relation to an Austrian consumer, the national court will ‘have to apply those Austrian statutory provisions which, under Austrian law, cannot be derogated from by agreement’ (para 70).

The Court then turned to Article 4 of the Data Protection Directive. Under Article 4, each Member State regulates processing carried out in the context of activities of an establishment in that Member State. Essentially the question is whether Amazon was established in Austria. The Court referred to its recent Weltimmo judgment, discussed here, which ruled that an undertaking does not need to have a branch or establishment.  Rather, it is a question of the stability of the arrangement and the effective exercise of activities (para 77) that is important.  Further, Article 4 does not require that the processing is carried out by the undertaking itself; the test is whether processing is carried out in the context of its activities (para 78).  This is a question of fact for the national court.

Comment

In terms of the importance of this judgment, we should note that the facts in issue are not uncommon – many on-line businesses have headquarters in one Member State but conclude contracts across multiple Member States. 

As regards the questions relating to applicable laws generally, we are now in a situation where national courts may have to assess questions pertaining to injunctions according to a different law from that relating to the contract itself.  This is not surprising, given case law in other fields, but it is the first confirmation of this point in the e-commerce context.  As an aside, it is also the first judgment on the Directive on injunctions for the protection of consumers’ interests.  It is worth noting that the Court seemed critical of attempts to bypass the protection in Article of 6 Rome II through the notion of ‘manifestly closer connection’ in Article 4(3).  It also specifically excluded the choice of law clause in the agreement as a determining factor in this regard too.

Perhaps the most interesting aspect is, however, the data protection aspect.  The Court did not go into much detail (perhaps signalling behind the scenes disagreement) and there are some curious silences as to some points touched upon by the Advocate General.  The Advocate General had in fact suggested that Article 4 had a ‘dual role’ (Opinion para 110).  So while Weltimmo might apply to determine applicable law, the broad approach to ‘establishment’ found in GoogleSpain to determine the outer territorial limit of the Data Protection Directive did not apply to the intra-EU setting.  The driver for the decision in GoogleSpain was a desire to ensure that the Data Protection Directive applied at all; it was therefore relevant to external processors (Opinion, para 124).  In this case, if the Austrian laws did not apply then the laws of one of the other Member States would and so the extensive approach would not be necessary.  This distinction was an innovation on the part of the Advocate General; it was certainly not visible in Weltimmo in which the Court relied on its reasoning in GoogleSpain, and nor was it apparent from GoogleSpain.  Further, the Advocate General seemed to be more stringent about finding ‘establishment’ than the Court in Weltimmo.  For example, the fact that Amazon may provide an aftersales service in Austria on its own was insufficient in his view (Opinion, paras 121 and 125); he also discounted the possibility that the accessibility of a website was likewise insufficient for this purpose (Opinion, paras 117 and 120). 

Against this background, the silence of the ECJ on the internal/external point is striking, especially given the repeated references to the Opinion through the rest of its judgment.  So is its silence on the subject of GoogleSpain. The Court’s reasoning is grounded only on Weltimmo.  On the one hand, we could argue that the Court has not agreed with the distinction put forward by the Advocate General, but by not applying GoogleSpain directly here, it has not ruled it out either. Note that the Article 29 Working Party (the advisory body set up by the data protection Directive) had applied the extensive interpretation from GoogleSpain in its updated Opinion 8/2010. The Court here also gave no further guidance on the topic of establishment, taking convenient refuge no doubt in the point that its role is to interpret EU law and not to assess facts.

Photo credit: www.creativeintent.co.uk 

Libel law, EU law and the ECHR: A Comment on Arlewin v. Sweden

Athanassios Takis: PhD, Special Adviser to General Secretariat of Greek government

The judgment of the European Court of Human Rights of 1 March 2016 in the case of Arlewin v. Sweden concerns the (mis)application of EU Regulation 44/2001 (which determines which Member State’s courts have jurisdiction over civil and commercial cases) on behalf of the Swedish courts and illuminates the limits of the ‘acte clair’ doctrine (the principle that final national courts do not always have to send questions about EU law to the CJEU).

The Arlewin judgment

The facts of the Arlewin case, which gave the ECHR the chance to decide on an issue concerning the application of EU law have as follows: The applicant, Raja Arlewin, is a Swedish national, a self-employed businessman, who attempted to bring private prosecution proceedings and a claim for damages for gross defamation against X. X is a Swedish national, the Chief Executive Officer of a television company and anchor-man of a popular show in which Mr. Arlewin was accused of, among other things, involvement in organised crime in the media and advertising sectors. The television programme had been produced in Sweden, in the Swedish language and was sponsored by Swedish advertisers. The programme was sent from Sweden via satellite to a London-based company (Viasat Broadcasting UK Ltd), which broadcast and transmitted it to viewers in Sweden.

In a preliminary ruling the Stockholm District Court declined jurisdiction over Mr. Arlewin’s claims because the programme had not originated from Sweden. The court applied the relevant Swedish law, mainly the Constitutional law on freedom of expression, and followed the case law of the Swedish Supreme Court. The Court of Appeal upheld this decision, finding that Mr. Arlewin had not established that the decisions concerning the content of the programme had been taken in Sweden, a fact which was a prerequisite for the jurisdiction of Swedish courts. It contested that the defamation claim should be decided by the courts of the United Kingdom where the seat of the company transmitting the programme is.

Mr. Arlewin appealed, alleging that the Swedish courts’ position ran counter to EU law and specifically to the Brussels I Regulation (44/2001), as interpreted by the Court of Justice of the European Union (CJEU). The Regulation establishes the principle that in cases relating to liability for wrongful acts, jurisdiction is to be exercised by the courts of the place where the harmful event had occurred and, according to Mr. Arlewin, in his case the harmful effects of his defamation had occurred in Sweden. He also requested that a question concerning the interpretation of the Brussels I Regulation be referred by the national court to the CJEU for a preliminary ruling. The Swedish Supreme Court rejected Mr. Arlewin’s referral request, finding no reason to request a preliminary ruling from the CJEU, and rejected the case.

Since Mr. Arlewin was not satisfied with this, he brought an application against the Kingdom of Sweden before the ECtHR claiming that he had been deprived of effective access to court and that the State had failed to provide him with sufficient protection against allegations that violated his right to privacy. In its judgment of 1 March 2016 the ECtHR notes that the core issue in this case is whether the Swedish State violated the applicant’s rights through the courts’ decisions to dismiss the defamation suit on grounds of admissibility. The Court examined the relevance to Mr Arlewin’s case of two instruments adopted within the framework of the European Union, namely the EU Audiovisual Media Services Directive (2010/13) and the Brussels I Regulation.

The Court rejected the Government’s argument that the Audiovisual Media Services Directive determined the country of jurisdiction when an individual initiated a defamation claim. In particular the Directive. More precisely Article 28, which addresses the situation where a person’s reputation and good name have been damaged in a programme, sets out only the right of reply; it does not deal with defamation proceedings or a related claim for damages. The Court therefore considered that the Audiovisual Media Services Directive did not regulate the matter of jurisdiction when it came to defamation proceedings arising out of the content of a transborder programme service.

Rather, jurisdiction under EU law was regulated solely by the Brussels I Regulation. Under Articles 2 and 5 of that Regulation, it appears prima facie that both the United Kingdom and Sweden had jurisdiction over the subject matter of Mr. Arlewin’s case. On the one hand, X is domiciled in Sweden, and, on the other, Viasat Broadcasting UK Ltd is registered, and thus domiciled, in the United Kingdom (Article 2 gives jurisdiction to the country of domicile of the defendant). Furthermore, Article 5 gives jurisdiction to the place where the harmful event occurred, and it could be argued that the harmful event had occurred in both countries, as the television programme had been broadcast from the United Kingdom and the alleged injury to Mr. Arlewin’s reputation and privacy had manifested itself in Sweden. The programme had been produced in Sweden in the Swedish language, was backed by Swedish advertisers, was to be shown live to an exclusively Swedish audience, while the alleged harm to Mr. Arlewin’s reputation had occurred in Sweden. With the exception of the technical detail of satellite reception transmission, the facts of the case were entirely Swedish in nature.

Therefore, the Court noted that the content, production and broadcasting of the television programme as well as its implications had very strong connections to Sweden and very little to the United Kingdom. Under those circumstances the Swedish State had an obligation under Article 6 of the Convention to provide Mr. Arlewin with an effective right of access to court. The Swedish courts’ interpretation of both the Swedish and the EU law had led to a situation where the alleged victim of the defamation could not hold anyone responsible under Swedish law and could only find his way to a court in the UK. Requiring Mr. Arlewin to take proceedings before the UK courts could not be said to have been an equally viable and reasonable alternative, as far as the practical and economic obstacles to initiate proceedings abroad would render the remedy inefficient. The Swedish courts, by dismissing Mr. Arlewin’s action without examination of the merits and by referring to the alternative of initiating proceedings in another country, had impaired the very essence of his right of access to court and consequently breached Article 6 of the ECHR.

Comment

This is an ECHR judgment which directly examines the application of the EU acquis by the Member States’ courts and indirectly touches upon the issue of these courts’ obligation to apply for a preliminary ruling by the CJEU. As far as the first matter is concerned, the ECtHR clarifies the scope ratione materiae of the EU's Audio-visual Media Services Directive as not regulating every issue of substance and jurisdiction that may arise in relation to the broadcast of a television programme. The Directive only regulates a person’s right to reply to claims concerning him or her and not his or her right to initiate civil or criminal proceedings before national courts for his or her defamation.

The Court further addresses the issue of the provisions of the Brussels I Regulation and their impact on the right to a fair trial. In underlining the importance of the systematization of solutions ensured by the Regulation and the criterion of ‘strong connections’ of a dispute to a country as a jurisdictional basis (article 5 paragraph 3 of the Regulation), the judgment affirms that in general the Regulation observes the right to a fair trial and draws a fair balance between diverging interests. The special jurisdiction in matters relating to tort establishes the jurisdiction of the courts of the place where the harmful event occurred or may occur (locus damni) and constitutes a comprehensive derogation from the main rule set in Article 2. 

The ratio of this provision rests on the indissoluble ties between the component parts of liability with the evidence and of the conduct of the proceedings and the causal connection between the damage and the event from which that damage originates. That is why litigation before an alternate forum abroad would be too burdensome for the applicant and a violation of his right to enjoy practical and effective access to a court. The Court of Strasbourg relies upon the findings of the Luxembourg Court and reaffirms the existence of a direct dialogue between the two jurisdictions, with the first affirming the findings of the second in a noteworthy manifestation of its endeavour to choose -whenever possible- an interpretation of the ECHR that facilitates the proper application of EU law by national authorities.

As for the second issue at hand, namely the obligation to address a question to the CJEU, the Court doesn’t explicitly address this issue. However, it seems rather apparent that had the Swedish courts applied for a preliminary ruling, the CJEU would have affirmed that the referring courts were competent to examine the defamation claims of Mr. Arlewin by virtue of Article 5 paragraph 3 of the Brussels I Regulation. This is clearly the outcome of the CJEU judgments cited and of the paragraphs 36-39 of the ECtHR judgment concluding that ‘Brussels I Regulation requires EU Member States to make their courts available if jurisdiction is confirmed, [as] the ECJ noted in Kongress AgenturHagen GmbH v. Zeehaghe BV that the Regulation does not govern matters of procedure. This means that a court can reject a case for reasons relating to domestic procedural rules as long as the national procedural law does not impair the effectiveness of the Brussels I Regulation’.

However, the Swedish courts applied the Brussels I Regulation in a manner inconsistent with EU law and in considering the jurisdictional provisions to be an acte clair, rejected the request of the applicant. According to Article 267 of the TFEU, when questions on the interpretation or validity of EU law are raised in a case pending before a court of a Member State against whose decisions there is no judicial remedy under national law, that court is required to bring the matter before the Court of Justice of the European Union and apply for a preliminary ruling. The CJEU in the Cilfit and Others case has established three limited exceptions to this rule. Under the third of these exceptions, a national court against whose decisions there is no judicial remedy doesn’t have to apply to CJEU for a preliminary ruling when it is convinced that no doubt arises as the meaning or the validity of the law to be applied is clear and unequivocal (acte clair) and therefore, immediately comprehensible.

A court or tribunal adjudicating at last instance may take the view that, although the lower courts have interpreted a provision of EU law in a particular way, the interpretation that it proposes to give of that provision, which is different from the interpretation espoused by the lower courts, is so obvious that there is no reasonable doubt as to its meaning. The Court has also made clear that the existence of such a possibility must be assessed in the light of the specific characteristics of EU law, the particular difficulties to which the interpretation of the latter gives rise and the risk of divergences in judicial decisions within the European Union (see judgments in Intermodal Transports, para 33, and in João Filipe Ferreira da Silva e Brito and Others, para 39, and discussion here and here). 

However, the Court in the latter judgment found that, in cases where a question of EU law has given rise to a great deal of uncertainty on the part of many national courts, the courts of last instance should deem themselves obliged to make a reference to the Court of Justice. A persistent uncertainty strongly indicates not only that there are difficulties of interpretation, but also that there is a real risk of divergences in judicial decisions within the European Union. Should a failure on behalf of the national court to observe this duty imposed by Article 267 TFEU cause damages to individuals (see Köbler), the Member States should either set aside the court’s decision or, where this is impossible due to the principle of res judicata, compensate the individual for infringement enacted by the court of last instance of its EU law obligation (João Filipe Ferreira, para 60).

The relationship between the refusal to request a preliminary ruling and the violation of the right to a fair trial has been the subject of two other important judgments delivered by the ECtHR. At the same time, a third application is still pending (Repcevirág Szövetkezet v. Hungary, Application no. 70750/14 vii Application no. 17120/09). In the case of Dhahbi v. Italy the Court said that refusing a request for a preliminary ruling, while providing no reasoning at all for the refusal, constitutes a breach of Article 6 ECHR. In the more recent judgment of 21 July 2015 in the case of Schipani and others v. Italy (discussed here), the Italian Cour de cassation did not make any reference whatsoever to whether the issue at hand was an acte clair and therefore, justified an exemption from the rule that renders the preliminary reference obligatory for the last instance courts. According to the ECtHR ‘it is therefore not clear from the reasoning of the impugned judgment whether that question was considered not to be relevant or to relate to a provision which was clear or had already been interpreted by the CJEU, or whether it was simply ignored’. The Court of Strasbourg again reached the conclusion that the applicants’ right to a fair trial had been breached.

Examining the cases of Dhahbi, Schipani and Arlewin of the ECtHR and João Filipe Ferreira of the CJEU together, indicates that the Courts of Luxembourg and Strasbourg have restricted the criteria of the application of the doctrine of acte clair. The national courts have to accurately reason their decisions not to apply for a preliminary ruling based on their unequivocal understanding of the EU law. The combination of the Arlewin and João Filipe Ferreira judgments shows that a breach of EU law resulting from the misapplication by the highest national courts of Article 267 TFEU may entail the responsibility of the Member State to compensate the individuals at the same time for both their material damages (a EU law consequence in line with the Francovich and Köbler rulings) and their non-pecuniary damages (a ECtHR consequence in line with the Arlewin judgment).

Barnard & Peers: chapter 9, chapter 10

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