the Ukraine-EU Association Agreement up for vote in the Netherlands. ....I think

UPDATE: the Council of State has announced it plans to give its verdict regarding the legal challenge of the referendum on Monday 26 October 4 pm CET. So from that moment we will have certainty on whether the referendum will be held. 

In a previous post, I have indicated that a "corrective consultative referendum" may be on its way to the poles in the Netherlands regarding the Association Agreement the EU (but also all its Member States, as well as Euratom) signed with Ukraine.

The number of app-based requests received, according to
Geenstijl (x= corrected data), via @datagraver

After parliamentary approval of the agreement in the Netherlands, within 6 weeks, over valid 300,000 requests had to be sent to the Election Council (Kiesraad) to trigger the referendum. Last week, on 14 October, the Election Council announced that threshold was reached exceeded: 472,849 requests were received. Based on a detailed test (name, address and signature match with registered data; person eligible to send the request) of a random sample of just over 4112 requests, ca 90.6% was deemed valid, and thus  427,939 were validated, which means a referendum is to take place.

Effect

The referendum has a consultative character only, but in the case of "NO" vote and a turnout of at least 30%, going against the outcome can not be done quietly: a draft act proposing either entry into force of the rejected act or retraction of that act, has to receive full parliamentary approval before it can enter into force. In the case of a clear decision (>60% NO) it thus seems -to me- unlikely that the law will enter into force, because approving such a law against the majority would equate to political suicide. ... Which means we are stuk with "provisional application" of the EU part of the agreement for an indefinite period, and possibly eventually a new agreement will have to be brokered. 

Appeal

Council of State, in The Hague

There is a caveat though, because -as any administrative decision of a government authority- it is open to appeal. In election (and referendum) matters only a single instance appeal is open, directly to the Council of State (Raad van State), and the procedure is designed to be fast: appeals have to be lodged within 6 days (which means Tuesday 20 October at the latest), and the Council of State is to decide the appeal in 6 days of the receipt.

I wouldn't be discussing this, if the Council of State hadn't announced today, an appeal had been filed. An oral hearing date was immediately set for Thursday 22nd, and based on the decision term, that means a final decision will be given on Monday 29th the latest.

Are print outs of online requests valid?

I am not sure what the grounds for the decision are, but according to website geenstijl.nl, one of the campaigners for the referendum, the point of contention is the mode in which the requests were received. They had to be sent to the Kiesraad on a designated form, or a "copy" thereof. The Kiesraad itself provided blank forms, as well as the possibility to create a pre-filled form, which only had to be printed and (manually) signed. The geenpeil campaign however, developed a web-based application, that allowed for submission of all required data, as well as the signature (to be produced using the trackpad of a laptop, drawing using a mouse, or using a touchscreen). Requests could not be printed by the applicant, but were stored on Geenpeil's servers, and printed and delivered by Geenpeil. (noone is contending this is a efficient system: the Election Council received the requests and DIGITIZED them before they further processed them)

According to Geenstijl, this system is in full conformity with the law, and they indicate they checked this with the Election Council. I am not an expert in the interpretation of the law on this point, but think the independent Election Council would have not allowed those forms, if they didn't think they would be within the law. Although we don't know which part of the requests were received using a printed computer-aided signature, according to Geenpeil, only a minority of requests were received through "regular" forms, so an invalidation of those forms will mean that no referendum will be held. But he last word is now with the Council of State.

Immunity of the European Patent Organization: Position of the Dutch Government

In a previous post, I commented on the somewhat precarious situation the Dutch government has found itself in (or manoeuvred itself in, depending on your position) regarding the European Patent Organisation EPO: in a verdict on appeal which thoroughly addressed jurisdiction issues, the The Hague Court of Appeal took jurisdiction in Labour Union SUEPO v EPO, despite the European Patent Convention's Protocol on Privileges and Immunities. It did so in a case regarding non-recognition of the Unions, because labour unions have no recourse to any appeal mechanism, which was a breach of the fundamental rights of its members.

The case was "appealed" in Cassatie to the Hoge Raad (Supreme Court), in a procedure, which is only open to questions on  application of (the principles of) law, but not anymore regarding the facts of the case. As I noted, the Dutch government has requested to become a party to those procedures, and was granted that right last month. Now the government has shed some more light on their motives to do so in answer to parliamentary questions of Van Nispen en Ulenbelt. The relevant answer reads (in my translation, with comments in red):

The Dutch State as on 22 May submitted its request to become a party to the proceedings with the Hoge Raad. It did so, because regarding the immunity from jurisdiction and execution attributed to EPO, the verdict of the The Hague Court of Appeal did not take into account sufficiently on one hand the international obligations resulting from the Protocol on Privileges and Immunities of the EPO and on the other hand the special character of EPO, which has a seat not only in the Netherlands, but also in different states. The Dutch state has therefore become party to the proceedings regarding
*The absence of jurisdiction of the Dutch Judge regarding EPO, because of its immunity as an international organisation with a seat in multiple countries [multiple countries argument; I have no idea if the number of seats of an international organization has ever mattered regarding immunity? The point of multiple countries was brought up by EPO of course].
*The scope of the verdict in relation to EPO's immunity from execution 

The state has the duty to guarantee that international law is followed in the Netherlands. Violation of international law by the state and its organs leads to international liability of the Netherlands. That means that the State has to guarantee the immunity EPO has. The Netherlands should also ensure that its judges don't take jurisdiction, which they don't have according to international law. This means in the present case that the Dutch judge can not render a decision regarding an organisation over which it has no jurisdiction as a result of immunity. Besides that, the Dutch judge is not competent regarding subjects within the competence of other states. The decision of the court however is directed at the organisation as a whole, including its divisions in other states. For the Netherlands, as a host of EPO and many other international organisations, the international obligation to guarantee immunity is sufficiently important to become a party to the case on the side of this international organisation [after the legal arguments, that is a mostly opportunistic argument]. 

Well, the good thing of this is, that the arguments of the Court of Appeal are now being tested thoroughly at the Hoge Raad, and the State has every right to join the proceedings. But the strength with which the State dismisses a court decision in a case to which it is not a party is also troubling as it touches upon the balance of power between the judicial and the executive branches. It would have been a lot more respectful and appropriate if the State would have followed a different approach and said that "in the interest of development of law" it wants the Supreme Court to weigh the arguments to the maximum extent possible.

Will a decision of the Hoge Raad be the end of the business? In view of the importance of the ECHR case law regarding international organisations, an appeal there seems likely in the case of a loss of SUEPO in the Netherlands

Conflict of the Conflict of the Laws: jurisdiction involving Choice of Court Agreements

Which court has jurisdiction in international cases is a classic “conflict of law” subject and several instruments exist (bilateral and multilateral), to avoid the unsatisfactory result that the same case is litigated in several venues, and –worse- those venues reach different outcomes. 

In Europe, two complimentary instruments exist with regards to "civil and commercial matters": the Brussels regulation applied in the European Union and the Lugano convention in the European Union, Iceland, Norway and Switzerland. A case purely related to the European Union falls outside the scope of the Lugano convention. 

Changes: new Brussels Regulation and Hague Convention

2015 saw two important changes to this system: In January, the original Brussels regulation (44/2001) was replaced by a new one (2012/2015). While the old Brussels Regulation was almost to the letter identical to the Lugano Convention, the new Brussels regulation is not. Significantly –and the object of this post– is an exception to the “lis pendens” system, a corner stone of both instruments that indicates that the court seized first has jurisdiction and other courts should stay their proceedings until that first court has given its decision. This provision is to be regarded so strictly, that even if the parties had a Choice of Court Agreement for -say- a German court but proceedings were brought first for an Italian court, that German court would have to wait for the Italian court to determine it had no jurisdiction, before it could take jurisdiction. This sometimes resulted in seizing a non-chosen court being a useful delay tactic (especially when a backlogged court was chosen), informally termed the “Italian Torpedo”.  The new Brussels I Regulation addressed this and allowed a court to take jurisdiction, if the court unambiguously was chosen in a  valid choice of court agreement; even if parallel proceedings in a different court had been commenced.

The second change is more recent: the entry into force of the 2005 Hague Convention on Choice of Court Agreements. The convention now has two parties: Mexico and the European Union, which means that it applies immediately to 28 states (in addition to Mexico, all EU member states except Denmark). The convention has a much more limited scope than the Brussels regulation or the Lugano convention, as it only applies when a choice of court agreement is concluded. The system is similar to the new Brussels Regulation: the chosen court must hear the case, regardless of any pending actions for other courts. Courts not chosen should declare themselves not competent to hear the case. Also similar to the Brussels system: a decision should be recognised in other Hague convention states, regardless of the merits of the decision. 

From 1 October, the membership of those three instruments is as follows:

Country	EU member	Lugano	Hague Convention
Austria, Belgium, Bulgaria, Croatia, Cyprus, Czech Republic, Estonia, Finland, France, Germany, Greece, Hungary, Ireland, Italy, Latvia, Lithuania, Luxembourg, Malta, Netherlands, Poland, Portugal, Romania, Slovakia, Slovenia, Spain, Sweden and UK	x	x	x
Denmark	x	x	-
Iceland, Norway, Switzerland	-	x	-
Mexico	-	-	x

Conflict of the Conflict of law measures

So now we have ended up -in the European Union at least at least- with 3 systems to determine international jurisdiction in the presence of a choice of court agreement. Although they all -eventually- favour the agreement, the reasons to reject them varies. Furthermore, the Lugano convention still places the lis pendens regime above the choice of court agreement, so the chosen court will have to wait until the non-chosen court has rejected jurisdiction. It thus matters under which legal instrument the choice of court clause is evaluated. 

For the relationship between the Lugano and the Brussels convention is quite clear in this area. If a resident of Iceland, Norway or Liechtenstein is involved, or such a court is chosen, or seized before the chosen court is seized, the Lugano convention will apply, while in cases involving solely the EU, the Brussels convention applies (and yes, there are some areas, where there is ambiguity, but I won't go into that).

The relationship between the Hague Convention and other conventions is treated in article 26 and indicates that the convention should be interpreted as far as possible consistenly with other treaties. The rest of the provisions are complex to read, because they are phrased with many double negations (... where non of the parties (...) is not  a member ....). I will try to rephrase them positively, as that is a lot easier to understand. It may however come at the loss of some exactness (possibly when a person should be considered resident in more than one location). 
-26(2): Another convention [e.g. Lugano] takes precedence if all parties are residents of
-:'states, which are party to that other convention [e.g. Lugano]; and/or
-:'non Hague convention states 
-26(3): If the court seized has conflicting obligations with respect to an older [concluded before the contracting state became a Hague party, e.g. Lugano] treaty with respect to a non-Hague State (e.g. Switzerland). 
-26(6)a: The rules of a Regional Economic Integration Organization (REIO, e.g. the EU; applying Brussels Regulation) apply when all parties are residents of 
-:'REIO states [e.g. Brussels regulation]; and/or
-:'non Hague convention states' 

How does that all work in practice, especially in relation to the Italian torpedo risk? I'll evaluate that using a hypothetical case. The case concerns a dispute regarding a contract with a choice of court agreement favouring "the courts of state A" and the contract parties are party A, resident in State A and party B, resident in State B. When a conflict arises, Party B sues in State C. Subsequently Party A starts a procedure for (the chosen court) of state A. Let's see what happens, when we make A, B and C specific, I get the following applicable instruments:

	A	B	C	Applicable instrument in state A	lis pendens?
	(party A, Chosen courts)	(party B)	court first seized	[applicable Hague "advantage"  provision]
1	France	Belgium	Greece	Brussels I [Hague 26(6)]	no
2	France	Belgium	United States	Brussels I [Hague 26(6)]	no
3	France	Mexico	Greece	Hague	no
4	France	Belgium	Switzerland	Lugano [Hague 26(2)]	yes
5	France	Mexico	Switzerland	Lugano [Hague 26(3)]	yes
6	Switzerland	Mexico	France	Lugano	yes
7	France	United States	Belgium	Brussels I [Hague 26(6)]	no
8	United States	France	France	-	no

Case 1 is quite straight forward: if only EU states are involved, the Brussels I regulation applies, and -in its new version- that means no waiting for the Greek court to have decided. Case 2 involves only EU residents, and thus Brussels I applies at well. When residents of only non-EU Hague State Mexico are involved, the Hague Convention applies (example 3). 

However (example 5), the French court has the possibility to stay proceedings pending a decision by the Swiss court: under Hague 29(3), the Lugano convention's lis pendens regime is an international treaty obligation which should be respected, as non-Hague state Switzerland is involved. However, this give-way rule only applies when a non-Hague state is involved, so should Switzerland however become a member to the Hague Convention, then the Hague convention should be applied. 

In case 7 the EU system applies again, as no non-EU Hague states are involved. 

This whole system of examples does not change a lot when other Lugano states become party to the Hague Convention: only in example 5 (Hague 26(3)), Lugano would be inapplicable when Switzerland joins the Hague convention, as it allows only for conventions to gain precedence with regards to treaty obligations in relation to non Hague parties. 

Remaining Lugano Relevance
However, the rules under article 26(2) (if only Lugano states are involved + other states that are non Hague states), the Lugano convention applies) are still applicable. That means that the lis pendens regime in the Lugano states can only be resolved through a change in that convention. It puzzels me why no -public- mention of such negotiations is known: the divergence between Lugano an Brussels regulation seems something that politicians have tried to avoid for ages. There must be some hidden problem in the new Brussels regulation as far as the other Lugano states are involved, that hampers the corresponding change in the Lugano convention. Or could it have been that a tactical error has been made in not involving them in the negotiations of the Brussels I regulation recast, and they feel uncomfortable with a "take it or leave it" attitude with regards the corresponding change in the Lugano convention? Who knows!?

SUEPO v EPO: immunity-based rejection of service of a judgement holding that that immunity doesn't apply

"National courts are not to hear cases regarding international organizations, because they enjoy immunity from prosecution.” On this basis courts generally do not assume jurisdiction in conflicts in which an international organization is involved, and generally that must be assumed to be a correct mode of action.

There are however several limits to immunity of international organizations: protocols on immunity generally exclude immunity in actions not directly related to their core task like conflicts about procurement of goods. Even if a subject matter is covered by immunity protocols, courts in -at least- Europe should take into account the case law of the European Court of Human Rights, interpreting the European Convention on Human Rights. In brief, employees of international organisations on European soil can not be denied their fundamental rights stemming from the ECHR. The pivotal case is Waite & Kennedy v Germany (nr. 26083/94) in a case where Germany had denied jurisdiction based on immunity of the European Space Agency. ECHR found that the German courts were right to do so stating that as a minimum requirement to avoid "national" jurisdiction, the international organization should have a “reasonable alternative means to protect effectively their rights under the Convention".

EPO labour dispute
It is based on the latter point that the Dutch Court of Appeal of The Hague has taken jurisdiction in a case between labour union SUEPO and the European Patent Organization (EPO), reversing a First Instance decision. SUEPO was not recognised by EPO, and was not able to appeal its non-recognition decision. While EPO argued that individual employees of EPO had recourse to the administrative tribunal of the international labour organisation (ILOAT), the judge held that that did not absolve EPO from providing an appeal mechanism to SUEPO (whether with ILOAT or elsewhere). The court thus took jurisdiction and ordered i) recognition of the union, ii) a wider “right to strike” and iii) allowing the union to send emails to its members. The judgement seemed well reasoned to me and clearly took into account the intergovernmental context, as no Dutch labour standards were imposed.

Things went interesting from a jurisdiction case law and international relations point of view from then on. To be executable, the judgement had to be served to EPO, which SUEPO had done through a gerechtsdeurwaarder (court’s bailiff) as is required in the Netherlands. EPO however refused to comply with the judgement because of its immunity. Furthermore, Dutch Minister of Justice Ivo Opstelten ordered (rather late, as the judgement had already been served, and a served judgement can not be “unserved”) bailiffs not to serve the judgement under a part of the bailiffs act (gerechtsdeurwaarderswet, Article 3a) that allows the Minister to prohibit service if it would run contrary to his obligations uphold immunity to intergovernmental organisations, embassies, ambassadors etc. I was shocked by Opstelten ordering non-service based on immunity, not because I am opposed to the principle of such immunity, but because the judge had so elaborately discussed (on appeal and not in first instance) why it held that it had jurisdiction, and from that decision it would automatically follow that denial of service could thus not be based on the -in this case not applicable- immunity. Parliamentary questions on the subject were asked and answered by Minister Van der Steur (Opstelten's successor), in which he held that -whatever the content or nature of the verdict- it could never be served by a court's bailiff, because of the inviolability of the premises of EPO, classified as an "absolute immunity from service". The minister contended however that non-service did not mean that an international organization "has no rights under international law or the law of its seat". In other words: the Dutch government holds that verdicts should be executed, but that it is not in a position to take the steps it would normally take to ensure that. I wonder if that is a position which would be followed by the European Court of Human Rights: if justice is done, but the judgement is not followed, that's just as effective as denial of justice. 
.
Current litigation
The matter doesn’t end here however, as the court dispute is currently fought on “two fronts”. SUEPO has appealed the order that bailiffs can not perform service of the judgement and thus has started a case against the state. I don’t know what the status is of that case.
EPO on the other hand has appealed the judgement of the The Hague Court to the Supreme Court in “cassatie”; which means that appeal is only possible on principles of law, rather than the facts of the case. In the latter case, 2 weeks ago the Dutch state was allowed to intervene and thus become a party to the proceedings.

I am following the cases with interest, as it will make clear how far a state can go in upholding immunity (in this case: inviolability of premises), based on a reasoned judgement -whatever one may think of that- that renders immunity (from cases involving unions) inapplicable. It also is interesting to see if the Supreme Court will follow EPO in its argumentation that as its employees (the individual members of SUEPO) have recourse to ILOAT, no separate process for Unions has to be provided.

But more important of all, its time for EPO, SUEPO and other EPO employees to find a way forward in solving their conflicts, as there are far too many indications, that the working environment at EPO is in dire need for improvement.