COTY: a luxury case

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by Joana Whyte, Associate Lawyer at SRS Advogados and member of CEDU


Coty
[i] is a much awaited case among competition law practitioners and scholars. This judgement of the Court of Justice of the European Union (CJEU) is expected to be a landmark for the luxury goods industry and will determine how the industry can protect their brands and whether restrictions on certain internet sales can be lawfully upheld.

The judgment will also be of extreme importance for Amazon and similar online marketplaces (such as eBay) who are concerned that internet sales bans will impede the growth of their businesses.

Coty Germany is one of Germany’s leading suppliers of luxury cosmetics who sells luxury cosmetic brands via a selective distribution network, on the basis of a general framework distribution agreement uniformly applied throughout Europe. The agreement is supplemented by other more specific contractual clauses designed to organise the said network.

Parfümerie Akzente has, for many years, distributed Coty Germany’s products as an authorised retailer, both at brick and mortar locations and over the internet. Internet sales are made partly through its own online store and partly via the “amazon.de” platform.

Continue reading “COTY: a luxury case”

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Taricco continues – between constitutional national identity and highest level of protection of fundamental rights, where does effectiveness of EU law stand?

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 by Alessandra Silveira, Editor 
 and Sophie Perez Fernandes, Junior Editor

In September 2015, and in the wake of the case-law set in Fransson, the European Court of Justice (ECJ) detailed in Taricco the scope of the Member States’ obligations to combat VAT fraud (see comment here). The ECJ is now faced with the repercussions of said judgment as the Corte costituzionale [the Italian Constitutional Court (ICC)] questions the compatibility of the solution established therein with supreme principles of the Italian constitutional order.

As is well known, the Taricco case called into question the Italian regime on limitation periods for criminal offenses. The national provisions in question were such that, given the complexity and duration of criminal proceedings, defendants accused of VAT evasion constituting serious fraud affecting the EU’s financial interests were likely to enjoy de facto impunity as a result of the expiration of the limitation period. Having established that the Italian regime in question was not in conformity with EU law, the ECJ interpreted Article 325 TFEU as having “the effect, in accordance with the principle of the precedence of EU law, in their relationship with the domestic law of the Member States, of rendering automatically inapplicable, merely by their entering into force, any conflicting provision of national law”. Therefore, national courts were to “ensure that EU law is given full effect, if need be by disapplying those provisions (…), without having to request or await the prior repeal of those articles by way of legislation or any other constitutional procedure”. The ECJ significantly added that, if a national court decides to disapply the national provisions at issue, “it must also ensure that the fundamental rights of the persons concerned are respected” as penalties might be applied to them, which, in all likelihood, would not have been imposed under those national provisions. In this regard, the ECJ did not consider that such a disapplication of national law would infringe the rights of the accused as guaranteed by Article 49 CFREU on the principles of legality and proportionality of criminal offences and penalties.

The Taricco judgment caused some stir within the Italian legal community. A few days after the delivery of the judgment, the Corte d’appello di Milano (Court of Appeal of Milan), instead of applying the solution formulated therein in a case pending before it concerning serious fraud in relation to VAT, stayed the proceedings to raise a question of constitutionality before the ICC, which would be followed months later by the Corte suprema di cassazione (Court of Cassation). Both courts have doubts as to the compatibility of the case-law established in Taricco with supreme principles of the Italian constitutional order and with the requirement to respect inalienable human rights as laid down by the Italian Constitution, with particular reference to the principle of legality in criminal matters [Article 25(2) of the Italian Constitution]. Hearing such concerns, the ICC sought a preliminary reference from the ECJ (here and here) according to an expedited procedure, the application of which was deferred (here). Advocate-General Yves Bot recently rendered its Opinion (here).

Continue reading “Taricco continues – between constitutional national identity and highest level of protection of fundamental rights, where does effectiveness of EU law stand?”

Portuguese Constitutional Court’s decision n.º 591/2016, of 9 November 2016 or when the Constitutional Court looked to EU law legal aid matters: figuring out the treasure’s map…

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by Joana Covelo de Abreu, Junior Editor

The dispute in the main proceedings

On 9th November 2016, the Portuguese Constitutional Court issued decision n.º 591/2016, concerning an incidental and concrete constitutionality control presented before this court.

In the litigation, a legal person presented before the competent national administrative authority (Instituto da Segurança Social, I.P. – Centro Distrital de Braga) a request for legal aid, which was refused without further consideration since article 7(3) of the Portuguese legislation (Lei n.º 34/2004) is clear when it states that “legal persons operating for profit and individual establishments of limited liability do not have the right to legal aid”[i].

Not accepting that decision, the legal person presented an action before the national first instance court where pleaded for the unconstitutionality of the mentioned article 7(3) of Portuguese legislation (Lei n.º 34/2004) and, simultaneously, for the infringement of article 47 of the CFREU.

The court ruled against the legal person because there was a “clear impracticability” in the litigation, understanding among others that the national legislation was not unconstitutional since article 20 of the Portuguese Constitution demands concretization approaches and, for that matter, the limitation steaming from the national legislation was not compromising the Constitution’s setting since other legal mechanisms could be used by the litigator so that it could react under financial stress.

However, the national court did not mention anything concerning EU law and the interpretation national legal rules should meet under EU general principles.

Continue reading “Portuguese Constitutional Court’s decision n.º 591/2016, of 9 November 2016 or when the Constitutional Court looked to EU law legal aid matters: figuring out the treasure’s map…”

The latest on the Zambrano front – the Chavez-Vilchez judgment

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by Sophie Perez Fernandes, Junior Editor

Back in 2011, the ECJ delivered a pivotal decision in the Zambrano case. With reference to the Rottmann case, the ECJ held that “Article 20 TFEU precludes national measures which have the effect of depriving citizens of the Union of the genuine enjoyment of the substance of the rights conferred by virtue of their status as citizens of the Union.”

By this criterion are included within the scope of application of EU law situations which, a priori, fall within the competence of the Member States (the so-called purely internal situations). The Zambrano-criterion indeed allows EU citizens to rely on their status as EU citizens against their own Member States of nationality even when they have not exercised their rights of free movement. The immediate consequence of the Zambrano ruling was to preclude Member States (in casu, Belgium) from refusing third country national parents of minor EU citizens a right of residence in the Member State of residence and nationality of those children in so far as such decisions would result in the children having to leave the territory of the Union as a whole.

The subsequent case-law gave a rather narrow interpretation to the criterion, as can be confirmed by the judgments delivered in McCarthy, Dereci, Iida, O and S, Ymeraga, Alokpa and NA. The ECJ held the Zambrano-criterion as a specific criterion as it relates to “very specific situations” in which a right of residence may not, exceptionally, be refused to a third country national without the EU citizenship enjoyed by (minor) Member States nationals being (fundamentally) undermined. It thus follows that any right of residence conferred on third country nationals pursuant to Article 20 TFEU are rights derived from those enjoyed by the EU citizen of which they are members of the family and have, in particular, “an intrinsic connection with the freedom of movement and residence of a Union citizen”.

Without calling into question or reversing this line of jurisprudence, the ECJ seems however willing to revive the Zambrano-criterion in more recent cases, addressing some issues so far left in the open. In CS and Rendón Marín, though admitting the possibility of limiting the derived right of residence flowing from Article 20 TFEU to third country nationals (limitation based on grounds of public policy or public security), the ECJ framed the scope of such a limitation, making its application conditional on a case-by-case analysis and upon respect for fundamental rights as protected by the CFREU, namely Articles 7 and 24(2) CFREU. The ECJ further clarified the scope of the Zambrano-criterion as the ultimate link with EU law for the purposes of the protection of fundamental rights in the Chavez-Vilchez judgment delivered last week.
Continue reading “The latest on the Zambrano front – the Chavez-Vilchez judgment”

Neutrality or covert discrimination? A brief review of the decisions of the Achbita and Bougnaoui cases

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by Cláudia Moreira, masters student at University of Minho

The ban on wearing religious symbols, like the hijab or headscarf, the niqab and burka, is nowadays at the centre of controversies over which limits can be legitimately established for religious manifestations. In recent years, there have been many European countries which, given the strong Islamic presence in their territory, have understood that they should find legal solutions to the heated discussions about the use of women’s religious clothing. Belgium was the first European country in 2010 to ban the wearing of the burka in public spaces. It was followed by France, which, even though it had already adopted a law banning the use of religious clothing or symbols in public schools in 2004, based on the State secularity principle, only more recently extended the ban to the use the burka and niqab in public spaces.

The wide discretion that the European Court of Human Rights (ECHR) has been providing to Member States, in cases concerning religious symbols[i] and their usage limitation may, as well asserted Martinez-Tórron[ii], be the result of the ‘fear’ of propagating of radical ideals, which are harmful to European freedom. This fear, however, does not legitimize the adoption, under false aegis of principles, such as justice or equality of measures restricting religious manifestations.

Continue reading “Neutrality or covert discrimination? A brief review of the decisions of the Achbita and Bougnaoui cases”

The Directive 2000/43/EC and the possibility of indirect discrimination by association: an analysis of the judgment CHEZ Razpredelenie Bulgaria (Case C-83/14)

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by Mariana Schafhauser Boçon, masters' student at University of Minho

The Judgment of the Court of Justice of the European Union (Grand Chamber) in Case C-83/14, delivered on 16 July 2015, concerned a request for a preliminary ruling under Article 267 TFEU from the Administrativen sad Sofia-grad, about the interpretation of Article 1 and Article 2(1) and (2)(a) and (b) of Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin and of Article 21 of the Charter of Fundamental Rights of the European Union (‘the Charter’).

The dispute in the main proceedings relates to the fact that, between 1999 and 2000, the CHEZ Razpredelenie Bulgaria AD – CHEZ RB, a Bulgarian electricity distribution company, installed the electricity meters of all the consumers of the ‘Gizdova mahala’ district, of the town of Dupnitsa (Bulgaria), inhabited mainly by persons of Roman origin, on the concrete pylons forming part of the overhead electricity supply network at a height of between six and seven metres, whereas in the other districts the meters installed by CHEZ RB are placed at a height of 1.70 metres, usually in the consumer’s property, on the façade or on the wall around the property.

In December 2008, Anelia Georgieva Nikolova, owner of a grocery store in the ‘Gizdova mahala’ district, lodged an application with the Komisia za zashtita ot dikriminatsia – KZD (Bulgarian Commission for Protection against Discrimination) alleging that she was suffering direct discrimination on the grounds of nationality due to the practice at issue of CHEZ RB.

Firstly, KZD ruled that the practice at issue constituted an indirect discrimination prohibited on grounds of nationality. However, after that decision was annulled by a judgment of the Varhoven administrativen sad (Supreme Administrative Court), KZD decided that Anelia Nikolova had suffered a discrimination because of her “personal situation” and ordered CHEZ RB to bring discrimination against her to an end and to refrain from such discriminatory behaviour in the future.

Against that decision, CHEZ RB brought an appeal before the Administrativen sad Sofia-grad (Administrative Court, Sofia), which decided to stay proceedings and to refer ten questions to the Court of Justice of the European Union (ECJ) for a preliminary ruling. These questions were also examined by Advocate General Juliane Kokott in her Opinion.
Continue reading “The Directive 2000/43/EC and the possibility of indirect discrimination by association: an analysis of the judgment CHEZ Razpredelenie Bulgaria (Case C-83/14)”

Humanitarian Visas and the X and X v. Belgium judgment (Case C-638/16 PPU)

 

by Teresa Alves, masters' student at University of Minho

The judgment in Case C-638/16 PPU, delivered by the Court of Justice of the European Union, on 7th March 2017[i] could represent a milestone in the history of the European Union, opening the door to an important legal path of access to international protection in the Member States and improving the Europe’s asylum policy. Particularly in a context of migration crisis that the European Union is trying to solve, adopting different measures. These measures include strengthening border controls, preventing human trafficking and trying to dismantle illegal forms of access to Member States’ borders through organized networks. Another measure is the EU-Turkey Statement that, despite some legal doubts, intends, not only, but also, to create a legal path of access to international protection in the Member States.

The story dates back to October 2016, when a Syrian family (mother, father – married to one another – and their three young children, from Aleppo) applied for a humanitarian visa at the embassy of Belgium in Lebanon. They hoped, with this, to legally enter in Belgium and to request asylum. They claimed that one of them had been abducted by an armed group, beaten and tortured, before being released on payment of a ransom. They emphasized, specially, the deterioration of the security situation in Syria, in general, and in Aleppo, in particular, as well as the fact that, as Orthodox Christians, they were at risk of persecution because of their religious beliefs. This family added that they could not register as refugees in neighboring countries, particularly in view of the fact that the Lebanese-Syrian border had been closed in the meantime.

The competent Belgian authorities promptly rejected the request, explaining that (i) the applicants planned to remain in Belgium for more than 90 days, and under the Visas Code, in accordance with Article 1, the issue of transit visas or visas within the territory of the Member States shall not exceed 90 days in a period of 180 days; (iii) in addition, Article 3 of the ECHR, according to which «no one shall be subjected to torture or inhuman or degrading treatment or punishment», shall not require States Parties to admit «persons living a catastrophic situation» and, lastly, they considered that (iii) Belgian diplomatic posts are not part of the authorities to which a foreigner may apply for asylum. For the reason that, authorizing an entry visa to the applicants in the main proceedings, for the purpose of submitting an application for asylum in Belgium, would be equivalent to allowing them to request this application for asylum in the diplomatic post.

The family appealed against the decision before the Conseil du Contentieux des Étrangers (Council for asylum and immigration proceedings, Belgium), which decided to refer to the Court of Justice questions relating to the granting of humanitarian visas. That is, «must Article 25(1)(a) of the Visa Code be interpreted as meaning that, subject to its discretion with regard to the circumstances of the case, a Member State to which an application for a visa with limited territorial validity has been made is required to issue the visa applied for, where a risk of infringement of Article 4 and/or Article 18 of the Charter or another international obligation by which it is bound is established?», «Does the existence of links between the applicant and the Member State to which the visa application was made (for example, family connections) affect the answer to that question?».
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Unveiling the meaning of freedom of religion in the workplace – or, unveiling the Achbita and Bougnaoui judgments

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by Sophie Perez Fernandes, Junior Editor

Our editorial of November 2016 related to two preliminary references proceedings at the time pending before the Court of Justice of the European Union (ECJ) concerning the question of religious expression at work and, particularly, the highly sensitive issue of the wearing of Islamic headscarves (and not the full veil) in the workplace. The issues raised in both cases required the interpretation of the concept of ‘discrimination on the grounds of religion or belief’ within the meaning of the Anti-Discrimination Directive – the Directive 2000/78[i]. Let us recall the fundamental questions at issue: is a private employer allowed to prohibit a female employee of Muslim faith from wearing a headscarf in the workplace?; is the dismissal of an employee who refuses to comply with such rules restricting the wearing of religious symbols at work unlawful?

On 14 March 2016, the Grand Chamber delivered both the Achbita (C-157/15) and the Bougnaoui (C-188/15) judgments, two significant decisions in relation to discrimination in employment on grounds of religion. The facts at the origin of each case were slightly different.

In the first case, Ms Achbita started to work for G4S as a receptionist in 2003 and complied with the rule according to which workers could not wear visible signs of their political, philosophical or religious beliefs in the workplace, an unwritten rule at the time. In 2006 Ms Achbita informed her employers that she intended, in future, to wear an Islamic headscarf at work and, in reply, was informed that such intention was contrary to G4S’s position of neutrality. Shortly afterwards, the above mentioned unwritten rule was written down: the workplace regulations thus stipulated that «employees are prohibited, in the workplace, from wearing any visible signs of their political, philosophical or religious beliefs and/or from engaging in any observance of such beliefs». Shortly after the amendment was approved, Ms Achbita was dismissed on account of her continuing insistence that she wished to wear the Islamic headscarf at work.

In the second case, Ms Bougnaoui was informed at a student recruitment fair by a representative of Micropole that the wearing of an Islamic headscarf might pose a problem when she was in contact with customers of the company. When Ms Bougnaoui began to work at Micropole in 2008 as an intern, she was initially wearing a bandana and subsequently an Islamic headscarf. Micropole nevertheless employed her at the end of her internship. Almost a year later, Ms Bougnaoui was dismissed. A customer of Micropole’s with whom Ms Bouganoui had worked informed her employers that her wearing the headscarf had upset some of their employees and requested that there should be «no veil next time». Despite the request of her employers, Ms Bouganoui refused to agree not to wear the headscarf in the future and was thus fired in 2009.

Continue reading “Unveiling the meaning of freedom of religion in the workplace – or, unveiling the Achbita and Bougnaoui judgments”

Case law Pebros Servizi concerning the European enforcement order for uncontested claims – The enforcement procedure as the next phase… Novelty or reality?

 

by Joana Covelo de Abreu, Junior Editor
  1. The dispute in the main proceedings

Pebros Servizi sued before an Italian national court several companies and, among them, we could find Aston Martin. However, the latter was duly noticed to present itself in court allowing it to participate in those proceedings, what did not happen. Aston Martin was condemned in absentia to pay to Pebros Servizi the total amount of 18.000,00€ “together with interest at the statutory rate running from the publication of the judgment until payment in full and the legal costs, comprising EUR 835 for sundry expenses and EUR 9 500 for professional fees, plus VAT and other incidental social security expenses under national law”[i].

Aston Martin did not present any appeal and that judgement became final.

On October 2014, Pebros Servizi asked that Italian court to certify that decision as a European enforcement order. However, that court expressed its doubts concerning using Regulation 805/2004 enforcement order in such a case. Those doubts derived from the fact that, in Italian law, a judgment made in default of the defendant does not mean the latter recognises the facts brought against him in the litigation. So, national court had doubts if “a judgment in default [might] be regarded as a judgment for an uncontested claim”[ii]. In this sense, national court called upon two doctrinal positions: 1) One, based on national law, where a default procedure does not amount for an uncontested claim; 2) Another, where “that concept of ‘absence of contestation’ is defined autonomously by EU law and covers also a failure to appear during proceedings”[iii].

Continue reading “Case law Pebros Servizi concerning the European enforcement order for uncontested claims – The enforcement procedure as the next phase… Novelty or reality?”