Summaries of judgments


Summaries of judgments made in collaboration with the Portuguese judge and référendaires of the CJEU (Nuno Piçarra, Mariana Tavares and Sophie Perez)

Judgment of the Court (Fourth Chamber) of 29 July 2019, Hochtief Solutions AG Magyarországi Fióktelepe v Fővárosi Törvényszék, Case C-620/17, ECLI:EU:C:2019:630

Reference for a preliminary ruling — Public procurement — Review procedures — Directive 89/665/EEC — Directive 92/13/EEC — Right to effective judicial protection — Principles of effectiveness and equivalence — Action for review of judicial decisions in breach of EU law — Liability of the Member States in the event of infringement of EU law by national courts or tribunals — Assessment of damage eligible for compensation


In 2006, a call for expressions of interest for a public works contract was published in the Official Journal of the European Union. According to the call, a candidate whose balance sheet showed a negative result for more than one of the last three financial years would not fulfil the conditions for economic and financial capacity. Hochtief Solutions, which did not fulfil that criterion, challenged its lawfulness before the Közbeszerzési Döntőbizottság (Public Procurement Arbitration Committee) arguing (i) that that criterion was discriminatory and (ii) that it was not by itself capable of providing information on the financial capacity of a tenderer. The Arbitration Committee partially upheld Hochtief Solutions’ action, ordering the contracting authority to pay a fine, but did not find that that criterion was unlawful.

Hochtief Solutions brought an action against the decision of the Arbitration Committee before the Fővárosi Bíróság (Budapest High Court), which took the view that the results of the balance sheet constituted a suitable criterion for providing information about economic and financial capacity and, accordingly, dismissed the action. Hochtief Solutions then appealed against this judgment to the Fővárosi Ítélőtábla (Budapest Regional Court of Appeal), which decided to stay the proceedings and to submit the request for a preliminary ruling that led to the judgment of 18 October 2012, Édukövízig and Hochtief Construction (C‑218/11, EU:C:2012:643). The Fővárosi Törvényszék (Budapest High Court), which had meanwhile succeeded the Fővárosi Ítélőtábla, having taken account of that judgment of the Court, upheld the judgment delivered at first instance, holding that the criterion used by the contracting authority to assess economic and financial capacity was not discriminatory. The Kúria (Supreme Court) dismissed the appeal lodged by Hochtief Solutions against the judgment of the Fővárosi Törvényszék. The Alkotmánybíróság (Constitutional Court) dismissed as inadmissible the constitutional appeal lodged by Hochtief Solutions against this judgment of the Kúria.

In 2014, Hochtief Solutions filed an application before the Fővárosi Közigazgatási és Munkaügyi Bíróság (Budapest Administrative and Labour Court) for review of the above-mentioned judgment of the Fővárosi Törvényszék. In support of its application for review, Hochtief Solutions claimed that the question whether the results of the balance sheet were an appropriate indicator for assessing the economic and financial capacity of a tenderer, and the judgment of 18 October 2012, Édukövízig and Hochtief Construction (C‑218/11, EU:C:2012:643), had not, in fact, been subject to any examination. In addition to rejecting Hochtief Solutions’ request to make a reference to the Court for a preliminary ruling, the Fővárosi Közigazgatási és Munkaügyi Bíróság dismissed the application for review, finding that the facts and evidence relied on by Hochtief Solutions were not new, the conditions of national law for the admission of a review appeal not being met. Hochtief Solutions then appealed against the order dismissing its application for review before the Fővárosi Törvényszék, which confirmed the order at first instance.

Hochtief Solutions then brought an action before the Székesfehérvári Törvényszék (Székesfehérvár High Court) seeking compensation for the damages that, it argued, the Fővárosi Törvényszék had caused in exercising its jurisdiction. Hochtief Solutions claims, in this regard, that it had not been given the opportunity, in accordance with EU law, to have account taken of the facts or circumstances that it had put forward before the Arbitration Committee and in the main proceedings, but on which neither that Committee nor the national courts seised of the case had given a ruling. In those circumstances, the Székesfehérvári Törvényszék decided to refer for a preliminary ruling several questions to the Court seeking guidance on, in particular, the principles laid down by the Court concerning, on the one hand, the liability of a Member State for damage caused to individuals as a result of an infringement of EU law by a national court adjudicating at last instance, and, on the other hand, the review of national judgments which acquired the force of res judicata.


As regards, on the one hand, the principles relating to the liability of a Member State for damage caused to individuals as a result of an infringement of EU law by a national court adjudicating at last instance, the Court of Justice recalled that that liability is governed by the conditions laid down by the judgment of 30 September 2003, Köbler (C‑224/01, EU:C:2003:513), without excluding the possibility that the State in question might incur liability under less strict conditions on the basis of national law. The Court of Justice also recalled that that liability is not precluded by the fact that the judicial decision in question has acquired the force of res judicata. In the context of the enforcement of that liability, the judgment reaffirms previous case-law according to which it is for the national court or tribunal before which the action for damages has been brought to determine, taking into account all the factors which characterise the situation in question, whether the national court or tribunal adjudicating at last instance committed a sufficiently serious infringement of EU law by manifestly disregarding the relevant EU law, including the relevant case-law of the Court. The judgment also clarifies that EU law precludes a rule of national law which generally excludes the costs incurred by a party as a result of the harmful judicial decision from damage which may be the subject of compensation.

As regards, on the other hand, the second set of questions referred for a preliminary ruling, the Court interpreted EU law as not precluding legislation of a Member State which does not allow review of a judgment, which has acquired the force of res judicata, which has ruled on an action for annulment against an act of a contracting authority without addressing a question the examination of which was envisaged in an earlier judgment of the Court in response to a request for a preliminary ruling made in the course of the proceedings relating to that action for annulment. However, when the applicable domestic rules of procedure include the possibility for national courts to reverse a judgment which has acquired the force of res judicata, for the purposes of rendering the situation arising from that judgment compatible with an earlier national judicial decision which has become final –– where both the court which delivered that judgment and the parties to the case leading to that judgment were already aware of that earlier decision –– that possibility must, in accordance with the principles of equivalence and effectiveness, in the same circumstances, prevail in order to render the situation compatible with EU law, as interpreted by an earlier judgment of the Court of Justice.

Judgment of the Court (Third Chamber) of 12 September 2019, Cofemel – Sociedade de Vestuário SA v G-Star Raw CV, Case C-683/17, EU:C:2019:721

Request for a preliminary ruling from the Supremo Tribunal de Justiça – Freedom of establishment – Freedom to provide services – Approximation of laws – Intellectual, industrial and commercial property –  Directive 2001/29/EC – Article 2, c)

The Case C-683/18 dealt with a question referred by the Supremo Tribunal de Justiça (Portugal) on whether the directive on copyright precludes provisions of national legislation whereby that protection is granted if a specific condition is satisfied, namely that designs must, over and beyond their practical purpose, produce a specific aesthetic effect.

The case before the Supremo Tribunal de Justiça (Portugal) concerned a dispute between Cofemel – Sociedade de Vestuário, SA (‘Cofemel’) and G-Star Raw CV (‘G-Star’), two companies which are both active in the sector of design, production and sale of clothing. The dispute concerns compliance with copyright claimed by G-Star, which accuses Cofemel of producing and selling jeans, sweatshirts and t-shirts copying some of its own designs.

The Court of Justice answered the question referred by the Supremo Tribunal de Justiça in the affirmative.

The Court recalled that any original subject matter constituting the expression of its author’s own intellectual creation can be classified as a ‘work’, within the meaning of the directive on copyright. Consequently, a design may also, in a particular case, also be classified as a ‘work’. However, the Court then recalled that the protection of designs, on the one hand, and copyright protection, on the other, pursue different objectives and are subject to distinct rules. Therefore, the Court explained that the grant of protection, under copyright, to subject matter that is already protected as a design must not undermine the respective objectives and effectiveness of those two sets of rules, which is why the cumulative grant of such protection can be envisaged only in certain situations. In this context, the Court explained that the aesthetic effect that may be produced by a design does not constitute a factor that is relevant to the determination, in a particular case, of whether that design can be classified as a ‘work’, since such an aesthetic effect is the product of an intrinsically subjective sensation of beauty experienced by each individual who may look at the design in question.

The Court underlined that the classification as ‘work’ does, however, require that, first, there exists a subject matter which is identifiable with sufficient precision and objectivity, and, second, that subject matter constitutes an intellectual creation reflecting the freedom of choice and personality of its author. As such, the fact that designs produce, over and above their practical purpose, a specific aesthetic effect, does not, in itself, require that such designs can be classified as ‘works’.


Editorial of December 2019


by João Marques, member of the Portuguese Data Protection National Commission

Portuguese DPA won’t apply the country’s GDPR law

In spite of its nature[i], the GDPR leaves some room of manoeuvre to the Member States. This European legal instrument has even been called a hybrid[ii] between a directive and a regulation, precisely because there is a significant amount of issues where national legislation can in fact diverge from the general solutions the GDPR brings to the table. Although such leeway is not to be misunderstood for a “carte blanche” to the Member States, there is nevertheless a relevant part to be played by national legislators.

From the definition of a minimum legal age for children’s consent to be considered valid for its personal data to be processed (in relation to information society services), which can vary between 13 and 16 years of age, to the waiver on fines being applied to the public sector (Article 83, 7), there is a vast array of subjects left for the Member States to determine. In fact, a whole chapter of the GDPR[iii] is dedicated to these subjects, namely: Processing and freedom of expression and information (Article 85); Processing and freedom of expression and information (Article 86); Processing of the national identification number (Article 87); Processing in the context of employment (Article 88); Safeguards and derogations relating to processing for archiving purposes in the public interest, scientific or historical research purposes or statistical purposes (Article 89); Obligations of secrecy (Article 90) and Existing data protection rules of churches and religious associations (Article 91).

Additionally, matters of procedural law, according to the Principle of Conferral (Article 5 of the Treaty on the European Union) are almost entirely left for Member States to regulate, with few exceptions such as the deadlines and the (in)formalities of the reply to a data subject rights request (Article 12) and, most notably, the one-stop shop procedure (instated in Article 60) and all its related and non-related issues that are undertaken by the European Data Protection Board, the new European Union Body provided by the GDPR (section 3 of Chapter VII).

The task that lied ahead of the Portuguese legislator, concerning the national reform of the Data Protection Law[iv], was therefore demanding but framed in a way that should have helped steer its drafting in a comprehensive and relatively straightforward manner[v].

The legislative procedure in Portugal took some time to be jumpstarted and it wasn’t until the 22nd of March 2018 that a proposal from the government was finally approved and forwarded to the Parliament, as this is a matter of its competence under Article 165(1)(b) of the Portuguese Constitution.
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