Archive for the ‘EU law’ Category

9de Groninger Letselschadecongres

Op 9 oktober 2015 vindt het jaarlijkse Groninger letselschade congres plaats. Dit jaar staat het congres in het teken van grensoverschrijdende letselschade in Europe. Antoinette Collignon zal tijdens het congres spreken over Europa en de letselschade advocaat. Voor meer informatie kunt hier vinden.

On 9 October 2015 the annual Groninger personal injury conference will take place. This year’s program is dedicated to cross border personal injury law in Europe. Antoinette Collignon will give a lecture at the conference on cross border personal injury law in Europe. More information can be found here

 

MH17 Crash: Some Legal Questions Answered

For LSA, the Dutch Association of Personal Injury Lawyers, Antoinette Collignon has answered some frequently asked legal questions further to the crash of Malaysia Airlines flight MH17. The Dutch text can be found on www.lsa.nl.

Anyone involved in a crash like Malaysia Airlines MH17 on 17 July 2014 suffers beyond description. So far there are no indications that the aircraft had mechanical failures. It seems that the plane was shot down by pro-Russian rebels using arms supplied by Russia. The investigation into the crash, the recovery and repatriation of the victims are highly complex and sensitive subjects. Just as complex and sensitive is the settlement of the loss already sustained and still to be sustained by the surviving relatives. Based on the information available at the time of writing – 26 July 2014 – experts have answered nine questions of law that have come up.

1. Could Malaysia Airlines Be Held Liable?
Under the Montreal Convention, which provides for strict liability in civil aviation, Malaysia Airlines will be required to pay damages up to 113,100 SDR (around EUR 120,000) for each passenger. It is irrelevant whether Malaysia Airlines is to blame for the crash. The surviving relatives will have to demonstrate the loss. In addition, Malaysia Airlines will be liable if it is found to be at fault. However, without an independent investigation it is impossible at this point to determine whether the airline is to blame. Claims must be filed within two years of the crash or they will lapse.

2. Which Law Applies?
The Montreal Convention does not contain any rules on the law governing the travel agreement and the requirement to pay damages. A European court will apply Regulation EC/593/2008 on the law applicable to contractual obligations (Rome I). Article 5.2 of that Regulation stipulates that if the law applicable to a contract for the carriage of passengers has not been chosen by the parties the law applicable will be the law of the country where the passenger has his/her habitual residence, provided that either the place of departure or the place of destination is situated in that country. This means that for most Dutch victims of the crash the contract for their carriage is likely governed by Dutch law. For non-Dutch nationals the applicable law should be determined on a case-by-case basis.

3. What Do the Claims for Damages of the Victims’ Families Cover?
If Dutch law applies, the claims for damages consist of so-called loss of dependency (costs of repatriation, funeral, etcetera), and loss of earnings (if, for instance, one of the family’s breadwinners or the sole breadwinner has died). It is difficult to compute the loss as allowance should be made for variable and fixed costs, among other things. In some cases it is possible to claim non-economic damages if the victims’ families sustained psychological damage when confronted with the crash. Emotional loss (bereavement following the loss of family members) cannot be claimed (yet) as the Upper House  (Senate) rejected the legislative proposal in 2010.  At the time of writing the government is working on a new proposal for compensation of emotional loss. If not Dutch law applies, but the law of another country, it is possible to claim not only loss of dependency but also non-economic damages following the loss of a family member.
4. Could the Separatists Who Downed the Plane Be Held Liable?
If it is determined that separatists have shot down the plane, Dutch law allows for claims under civil law against individuals for the damage they have caused. It is irrelevant whether or not they intended downing a civil aircraft. In that case the loss and damage should be compensated in full. There is a possibility that the individuals in question could be prosecuted under criminal law. The Dutch Public Prosecution Service could issue an international arrest warrant. A complicating factor, of course, is that the Donetsk People’s Republic (the state proclaimed by the pro-Russian separatists) is not likely to act on such warrant. The Ukrainian central authorities will also lack the power in this area to help. Theoretically, therefore, it is possible to hold the separatists liable, but success is doubtful. Even if the liable party could be found, it would be difficult to force that party to pay up. It is easier to hold a country liable than a group of rebels. In 1996 the United States, for instance, paid damages to the families of the victims of the Iranian civil aircraft that in 1988 had been accidentally shot down by an American warship.

5. Could Russia Be Held Liable?
At this point there is no definite answer to this question. If it turns out that the Russian political or military powers had direct command and control to down the aircraft, Russia might be held liable. Russia could also be held liable (in part) for supplying the weapons used to shoot down the aircraft. If separatists have used an SA-11 missile it might have been provided by Russia. SA-11 grizzly – so-called double-digit surface-to-air missile (BUK) – developed by Russia is an anti-aircraft system capable of bringing down aircraft from high altitudes. There have been reports that the equipment and the crew running it were provided by Russia. However, a causal connection should be demonstrated between the supply of the system and the crash. Also established should be fault. Although difficult, legally speaking, this is not impossible. The question further arises whether under the law applicable to the crash a government could be held liable. In other words: If Russia turns out to have supplied the weapons used to take down the aircraft, Russia might be held liable.
6. Could the Ukraine Be Held Liable?
This depends on the facts and circumstances. If the investigation reveals that Ukrainian military downed the aircraft, the Ukraine could be held liable. So far there has been no mention of this in the reports. The Ukrainian aviation authorities could be liable if they have given permission to fly over the area at an altitude from which they knew missiles could take down aircraft. This, too, calls for further investigation.
7. Could the Victims’ Families Go to Court to Demand Damages from One of the States Involved?
There are possibilities for the families of the victims to file claims against the states involved for damages to the extent that these are not paid by Malaysian Airlines. It is early days yet to answer this question fully and properly.

8. Which Law Governs Claims against One of the States/Separatists?
This question should be answered under private international law. A Dutch Court will apply Regulation EC/864/2007 (Rome II). The principal rule is the lex loci damni meaning the place where the damage occurred. It could be argued that court should apply Malaysian law as the victims were on board a Malaysian plane governed by Malaysian law at the time when they sustained damage. It could be argued also that the damage occurred outside the aircraft, in Ukrainian airspace. In that case Ukrainian law would apply. Finally, it would be fair to argue that Dutch law applies. Let’s say a breadwinner died in the crash. His or her family in the Netherlands, who relied on the deceased for their livelihood, suffers loss of income. A loss sustained in the Netherlands, although the cause of the loss lies in events in the Ukraine.  The same applies to losses of victims in Belgium, the UK and other EU countries.

9.  Are There Other Potentially Liable Parties?
The investigation might show that there are other potentially liable parties. Examples are companies responsible for making or authorising the flight plans or authorities that have the power to prohibit certain routes. The crash could be due (also) to mechanical failures, which could make the manufacturer liable. As mentioned earlier, mechanical failures are likely ruled out. However, it is too early for definitive conclusions.

Conclusion
The victims’ families could hold Malaysia Airlines liable for compensation of their loss, up to EUR 120,000 approx. per passenger. Any higher amounts can be claimed only if the airline has been found at fault. At this point no fault has been determined and there are other parties that might be held liable. Investigations will have to identify those parties and whether claims can be filed successfully. It is important that the competent court and governing law will be determined on a case-by-case basis. The many victims from various countries and the range of potentially liable parties make for a complex puzzle that can be completed only once the investigation has been concluded.
Let us hope that all parties involved will proceed with the utmost urgency and care to avoid any more suffering for the many affected.

Author: Antoinette Collignon

Extension Powers Claim Representatives in International Traffic Cases

English: Courtroom at the European Court of Ju...

 Courtroom at the European Court of Justice  (Photo credit: Wikipedia)

 

In international traffic cases in Europe involving Dutch vehicles loss and damage may be claimed from the representative of the foreign liability insurer in the Netherlands (claims representative) under Directive 2009/103 (the fifth Motor Liability Insurance Directive). The claims representative will settle the loss further to applicable law.

 

Although most cases are settled, some call for litigation. In that case there are several options. Under Brussels I  (EC Regulation 44/2001) a person sustaining damage can sue the insurer of the liability party in the country where the liable party resides, where the insurer has its registered office, in the country in which the accident happened or in the country where the victim resides.

 

So far the writ of summons was served through the competent authorities at the office of the insurer established abroad. Service abroad takes time and money. Service at the office of the claims representative is not possible as the adjuster is usually not authorized to take receipt of services and notifications. See, for instance, Court of Rotterdam, 23 September 2009, JA 2010,12.

 

A recent ruling of the European Court of Justice of 10 October 2013, C-306/12 (Spedition Welter/Avanssur) changed this.  The Court of Justice held that the writ of summons can also be served at the office of the insurer’s representative.

 

The case concerned a traffic accident that occurred near Paris on 24 June 2011, in which a lorry was involved of Spedition Welter, established in Germany. The French vehicle causing the accident was insured with the motor insurance liability insurer Avanssur established in France. Spedition Welter went to court to claim compensation. The writ of summons, however, was not served on Avanssur in France but on the representative designated by Avanssur in Germany, AXA Versicherungs AG (hereinafter: ‘AXA’).

 

The court in first instance held that the claim was inadmissible as the writ of summons had not been lawfully served on AXA as the latter was not authorised to take receipt of services and notifications.
Spedition Welter filed appeal with the Landgericht Saarbrücken. According to the Landgericht admissibility was decided by the interpretation of Article 21.5 of the Motor Insurance Liability Directive. For that reason the Landgericht submitted the case to the European Court of Justice.

 

Article 21.5 of the Directive says, in summary, that  claims representatives should possess sufficient powers to represent the foreign insurer and meet claims in full.  The article does not define the extent of those powers.

 

The European Court of Justice puts first and foremost that in determining the scope of an article its wording, context and objectives should be considered.  The objective of the Directive was to make it easier for victims of accidents to take action and to enable them to file claims in their own languages and countries.  The preamble to the Directive (paragraph 37) shows that Member States should ensure that claims representatives have adequate powers to represent the insurance undertaking in relation to persons suffering damage, before national authorities including the courts, insofar as this is compatible with the rules of private international law on the conferral of jurisdiction.

 

The European Court of Justice therefore reached the conclusion that Article 21.5 of the Directive should be interpreted to mean that the powers of the claims representative include taking receipt of court documents required to file a claim with the competent court.

 

This implies that in international traffic accidents in which the fifth Directive applies Dutch victims deciding to litigate in the Netherlands can now simply serve the writ of summons against the foreign insurer at the office of the Dutch claims representative.  For Dutch representatives this means an extension of their powers.

 

Commission recommends Member States to have collective redress mechanisms in place to ensure effective access to justice

The European commission in a press release of 11 June 2013 informed that it recommends Member States to have collective redress mechanisms in place to ensure effective access to justice.

“The European Commission has set out a series of common, non-binding principles for collective redress mechanisms in the Member States so that citizens and companies can enforce the rights granted to them under EU law where these have been infringed. The Recommendation aims to ensure a coherent horizontal approach to collective redress in the European Union without harmonising Member States’ systems. National redress mechanisms should be available in different areas where EU law grants rights to citizens and companies, notably in consumer protection, competition, environment protection and financial services. By recommending to Member States to put in place national collective redress mechanisms the Commission wants to improve access to justice, while ensuring appropriate procedural guarantees to avoid abusive litigation. The Recommendation complements the proposal for a Directive on antitrust damages which will help the victims of violations of antitrust rules to obtain compensation through the legal actions available in Member States (see IP/13/525, MEMO/13/531). While the Recommendation calls on Member States to put in place collective redress mechanisms, the Directive leaves it to Member States whether or not to introduce collective redress actions in the context of private enforcement of competition law.

“Member States have very different legal traditions in collective redress and the Commission wants to respect these. Our initiative aims to bring more coherence when EU law is at stake”, said Vice-President Viviane Reding, the EU’s Justice Commissioner. “This Recommendation is a balanced approach to improve access to justice for citizens while avoiding a US-style system of class actions and the risk of frivolous claims and abusive litigation.”

Vice President Joaquín Almunia, in charge of competition policy, said: “When they are victims of infringements of competition rules, citizens and businesses – particularly SMEs – often face strong obstacles in obtaining effective compensation. To overcome these difficulties we have proposed a Directive on antitrust damages actions. Since the harm may be shared by many injured parties, collective actions mechanisms should also be in place. This Recommendation is therefore a useful complement, sending a clear message to Member States.”

Consumer Policy Commissioner Borg added: “Today we are making an important step towards an EU framework for collective redress. We are inviting all EU Member States to equip EU consumers with the tools to enforce their rights and obtain compensation for the harm caused by violations of EU law. Member States should ensure that the collective redress procedures are fair, equitable, timely and not prohibitively expensive.”

Main Principles of the Commission Recommendation

The Commission’s Recommendation invites all Member States to have national collective redress systems and sets out a number of common European principles that such systems should respect:

Member States should have a system of collective redress that allows private individuals and entities to seek court orders ceasing infringements of their rights granted by EU law (so called “injunctive relief”) and to claim damages for harm caused by such infringements (so called “compensatory relief”) in a situation where a large number of persons are harmed by the same illegal practice.

Member States should ensure that the collective redress procedures are fair, equitable, timely and not prohibitively expensive.

Collective redress systems should, as a general rule, be based on the “opt-in” principle, under which claimant parties are formed through directly expressed consent of their members. Any exception to this principle, by law or by court order, should be duly justified by reasons of sound administration of justice. In parallel, the Recommendation stresses the need to provide information to potential claimants who may wish to join the collective action.

The Commission is recommending important procedural safeguards to make sure there are no incentives to abuse collective redress systems. Member States should for example not permit contingency fees risking creating an incentive for abuses. In addition, the entities which are representing claimants have to be of non-profit character, to ensure that they are guided by the interests of those affected in situations of mass damages. Another way of preventing abusive litigation is the prohibition of punitive damages which usually increases the economic interests at stake in such actions. Instead, full compensation should reach individuals once the court confirms that they are right in their claims.

The central role in the collective litigation should be given to the judge, who should effectively manage the case and be vigilant against any possible abuses. The Commission has not ruled out third party financing for European collective redress, but proposes conditions, in particular related to transparency, to ensure there is no conflict of interests.

The Recommendation also promotes Alternative Dispute Resolution, requiring that this possibility is offered to the parties on a consensual basis.

Next steps: The Recommendation asks Member States to put in place appropriate measures within two years at the latest. Two years after implementation of the Recommendation, at the latest, the Commission will assess the state of play, based on the yearly reports of the Member States to evaluate whether further measures to strengthen the horizontal approach reflected in the Recommendation are needed.

Background

What is Collective Redress and why is it needed

Collective redress is a procedural mechanism which allows for reasons of procedural economy and/or efficiency of enforcement, many single claims (relating to the same case) to be bundled into a single court action. It is a broad concept that includes injunctive relief (lawsuits seeking to stop illegal behaviour) and compensatory relief (lawsuits seeking damages for the harm caused). It needs to be clearly distinguished from so-called “class actions” that are common under the US legal system. In Europe, collective redress procedures have been introduced in some Member States. However, where introduced these procedures vary widely.

The Commission, as a public authority and guardian of the EU Treaties, enforces EU law. In parallel, individuals, business and entities representing interests of different groups of society can seek enforcement of their rights under EU law in national courts. In some cases, the violation of EU law may trigger multiple individual lawsuits. In these cases collective redress can complement public enforcement. Current EU law already provides for the possibility of pursuing collective actions for injunctions in the field of consumer law, but the national legal systems vary considerably concerning financial markets, competition, environmental protection, and other areas of law. The situation is even more diverse among Member States when several consumers or businesses want to seek damages in the same case. In preparing its Recommendation, the Commission carried out a broad public consultation in 2011 to assess if and under what conditions a European approach to collective redress can bring added value to European citizens and businesses (IP/11/132). It also took into account the European Parliament’s Resolution “Towards a coherent European approach to collective redress” asking for a horizontal framework for collective redress.

Commission Action in the area of Collective Redress

The Commission has worked for several years on developing European standards of collective redress in the field of consumer and competition law. The Commission adopted a Green Paper on antitrust damages actions in 2005 and a White Paper in 2008, both of which include a chapter on collective redress. In 2011, the Commission carried out a public consultation, in which around 300 institutions and experts as well as 10,000 citizens expressed their views on the European framework for collective redress. The public consultation demonstrated a divergence of views among stakeholders and a need for balanced solutions.”

New Dutch international private law (introduction)

If a client in a cross border case decides to issue proceedings in the Netherlands it is important to know which private international rules a Dutch court will apply. After all these rules determine which country’s
law should apply.
As of 1 January 2012 the Dutch have a new book 10 of their Civil Code. This book is a codification and consolidation of existing Dutch international private law. Although little seems to change it has made Dutch international private law much more accessible. In this blog I will discuss the content of Book 10 and several general articles and
Title 14 of Book 10, on the law applicable to non-contractual obligations.

A number of existing regulations regarding conflict law have been
brought together in Book 10.
Book 10 contains fifteen titles:
Title 1: General provisions,
Title 2: Name,
Title 3: Marriage,
Title 4: Registered partnership,
Title 5: Parentage,
Title 6: Adoption,
Title 8: Corporations,
Title 9: Agency,
Title 10: Law of property,
Title 11: Law of trusts,
Title 12: Inheritance law,
Title 13: Contractual obligations,
Title 14: Obligations from a source other than contracts
Title 15: Some provisions with regard to maritime law, the law of inland
shipping and aviation law.

The legislation encompasses mainly rules of reference that indicate which national law should apply in private legal relations with cross border or foreign elements. Reference is made to several European treaties and regulations.
The act doesn’t contains rules of a procedural nature, such as rules onjurisdiction and rules relating to recognition and enforcement of judgments. These rules are included in the Dutch Civil Procedure Code.

Children and road safety

From: http://ec.europa.eu/transport/road_safety/users/children/index_en.htm

Children are particularly vulnerable. Each year, more than 1100 children under the age of 15 are killed on European roads and 100.000 are injured.

Seat belts and child restraints

ChildrenUnder EU law, seat belts must be used in all vehicles. Children over 1.35 m can use an adult seat belt. Those under 1.35 m must use equipment appropriate to their size and weight when travelling in cars or lorries. It is now against the law to use a rear-facing child seat on the front passenger seat – unless the airbag has been deactivated.

The CHILD project looks into the ways children are injured in accidents. Its findings should help to improve the design of child restraints.

Children as cyclists and pedestrians

Teachers and parents can teach children about road safety as pedestrians (learning by doing). But children should have some formal training on basic traffic rules before they’re allowed to cycle on the road. Like adults, children should wear a helmet at all times when cycling.

The results of the ROSE 25 project include a booklet with European guidelines on road safety education for young people. The guidelines are based on the experiences of 25 EU countries.

 

 

 

Draft EU directive on patient’s rights on cross border health care

The draft directive is part of the social agenda package of 2 July 2008. It focusses  on a triple goal:

1. to guarantee that all patients have care that is safe and of good quality,

2. to support patients in the exercise of their rights to cross-border healthcare;

3. and to promote cooperation between health systems.

The aim of the second goal is to codify the case-law of the Court of Justice on reimbursement of cross-border healthcare.

More information can be found on:
http://www.consilium.europa.eu//uedocs/cms_data/docs/pressdata/en/lsa/114992.pdf

In January 2011 the European Parliament voted in favour of this new EU Directive.
John Dalli said: “Today’s vote marks an important step forward for all patients in Europe. I congratulate and thank the Rapporteur, Mrs Grossetete, for all her work.”

See also: http://europa.eu/rapid/pressReleasesAction.do?reference=IP/11/53&format=HTML&aged=0&language=en

The EC has published a Q&A for cross border health care which can be found here: http://europa.eu/rapid/pressReleasesAction.do?reference=MEMO/11/32&format=HTML&aged=0&language=en&guiLanguage=en

 

Amsterdam, 26 March 2011

Antoinette Collignon

 

 

 

 

 

 

 

 

The EU Register of Clinical Trials is launched Online.

On 22 March the EU register of clinical trails has been launched online
The aim is more transparency for patients and avoidance of unnecessary duplication of clinical trials

Clinical trials performed in the EU must be conducted by the EU Clinical Trials Directive (2001/20/EC) and implementing legislation. This legislation lays down principles and detailed guidelines for good clinical practice for investigating medicinal products for human use. It aims at ensuring a high level of protection of patient safety, as well as reliability and robustness of the data generated in a trial. To this end, the legislation and implementing guidance specify various aspects of clinical trials including:

* Information that must be submitted to the competent authorities and to the ethics committees
* Requirements for ‘informed consent’ of the clinical trial participants
* Requirements on safety monitoring and the reporting of adverse reactions
* Requirements on Good Clinical Practice, including the documentation, of the clinical trials
* Specific requirements on the products tested, including manufacturing and labelling
* The inspections of competent authorities and applicable procedures.

The Clinical Trials register has information about clinical trials authorised in the EU, whether they take place in one Member State or in several. It includes clinical trials conducted by both industry and research institutions. The information is rendered public once the clinical trial has been authorised.

The register also includes the clinical trials contained in a Paediatric Investigation Plan – the research and development program that aims to generate the data required to authorise a medicinal product for use in children. The clinical trials contained in such a Plan are published even if they are performed outside the EU.

The clinical trials register:
http://www.ClinicalTrialsRegister.eu

Further information:
http://ec.europa.eu/health/human-use/clinical-trials/index_en.htm

Source: press release of RAPEX 22 March: http://europa.eu/rapid/pressReleasesAction.do?reference=IP/11/339&format=HTML&aged=0&language=en&guiLanguage=en

Dutch International Private Law

This is a link to the European Commissions Judicial Network, which contains relevant information on Dutch International Private Law. You can find information on sources of law, the application of rules of conflict, and the rules of conflict.

Rights of Children in the EU, 11 new measures

Children’s rights are enshrined in EU law, in particular the EU charter of fundamental rights, The EU and its member countries are legally bound to uphold these laws.  All 27 countries have also ratified the UN convention on the rights of the child.

The European Commission has recently proposed 11 measures to protect children’s rights in Europe and overseas. The measures are as follows:

  • laws to better protect children (as an especially vulnerable group) during legal proceedings and in court
  • laws safeguarding children when they are suspects or accused of a crime
  • new laws ensuring that decisions on parental responsibility following divorce or separation are recognised and enforced in all EU countries
  • action to promote Council of Europe guidelines on child-friendly justice and take them into account in future civil and criminal law-making
  • support for training judges and other professionals to help children in court
  • better training for authorities responsible for unaccompanied children, including those seeking asylum in the EU
  • special attention for children in an upcoming EU plan to help the Roma integrate more in society
  • support for the quick introduction of the EU’s 116 000 hotline for missing children (cross-border alert systems for abducted or at-risk children would also be encouraged)
  • measures to counter cyber-bullying, grooming, exposure to harmful content, and other online risks through the EU’s safer internet programme
  • support in combating violence against children and child sex tourism, and protecting victims of armed conflicts, through the EU’s overseas and humanitarian aid programmes
  • a single EU website on children’s rights

These measures are set out in more detail in a Commission policy paper on children’s rights .

Let’s hope that these measures lead the way to a better world for children.