Summaries of judgments

 

Summaries of judgments made in collaboration with the Portuguese judges and référendaire of the General Court (Maria José Costeira, Ricardo Silva Passos and Esperança Mealha)
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Judgments of the General Court (Fifth Chamber) of the 12th of July 2019, 
T-762/15, T-763/15, T-772/15, T-1/16 and T-8/16

Competition – Agreements, decisions and concerted practices –  Market for optical disk drives – Decision finding an infringement of Article 101 TFEU and Article 53 of the EEA Agreement – Collusive agreements relating to bidding events concerning optical disk drives for notebook and desktop computers – Infringement by object – Essential procedural requirements and rights of the defence – Jurisdiction of the Commission –  Obligation to state reasons – Unlimited jurisdiction – Principle of good administration – Fines – Geographic scope of the infringement – Single and continuous infringement – 2006 Guidelines on the method of setting fines – Particular circumstances – Error of law

1 – Facts

On 21 October 2015, the European Commission adopted the Decision C(2015) 7135 final, relating to a proceeding under Article 101 TFEU and Article 53 of the EEA Agreement (Case AT.39639 – Optical Disk Drives, hereinafter “ODDs”) and, more specifically, to collusive agreements relating to bidding events concerning ODDs for computers organised by two computer manufacturers. Eight ODDs suppliers were covered by this decision, which imposes fines totaling EUR 16 million.

ODDs are used in computers produced by Dell and Hewlett Packard, the two main worldwide manufacturers in the market.

According to the Commission, between June 2004 and November 2008, the suppliers Philips, Lite-On, Philips & Lite-On Digital Solutions (their joint venture), Hitachi-LG, Data Storage, Toshiba Samsung Storage Technology, Sony, Sony Optiarc and Quanta Storage coordinated their behaviour in procurement tenders organised by the two computer manufacturers referred to above. During that period, they exchanged commercially sensitive information, communicated to each other their bidding strategies, and shared the results of procurement tenders.
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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)
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Judgment of the Court (Grand Chamber) 24 June 2019, Commission V Poland, (Case C- 619/18, EU:C:2019:531)

Failure of a Member State to fulfil obligations — Second subparagraph of Article 19(1) TEU — Rule of law — Effective judicial protection in the fields covered by Union law — Principles of the irremovability of judges and judicial independence — Lowering of the retirement age of Supreme Court judges — Application to judges in post — Possibility of continuing to carry out the duties of judge beyond that age subject to obtaining authorisation granted by discretionary decision of the President of the Republic.

Facts

On 3 April 2018, the new Polish Law on the Supreme Court (‘the Law on the Supreme Court’) entered into force. Under that law, the retirement age for Supreme Court judges was lowered to 65. The new age limit applied as from the date of entry into force of that law, and included judges of that court appointed before that date. It was possible for Supreme Court judges to continue in active judicial service beyond the age of 65 but this was subject to the submission of a declaration indicating the desire of the judge concerned to continue to carry out his duties and a certificate stating that his health allowed him to serve, and had to be authorised by the President of the Republic of Poland. In granting that authorisation, the President of the Republic of Poland would not be bound by any criterion and his decision would not be subject to any form of judicial review.
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Summaries of judgments

 

Summaries of judgments made in collaboration with the Portuguese judges and référendaire of the General Court (Maria José Costeira, Ricardo Silva Passos and Esperança Mealha)
 ▪


Judgment of the General Court (Ninth Chamber, Extended Composition), T
307/17 – Adidas Ag / Euipo (Three Parallel Stripes), 19 June 2019

EU trade mark — Invalidity proceedings — EU figurative mark representing three parallel stripes — Absolute grounds for invalidity — No distinctive character acquired through use — Article 7(3) and Article 52(2) of Regulation (EC) No 207/2009 (now Article 7(3) and Article 59(2) of Regulation (EU) 2017/1001) — Form of use unable to be taken into account — Form that differs from the form under which the mark has been registered by significant variations — Inversion of the colour scheme

Link: http://curia.europa.eu/juris/document/document.jsf;jsessionid=7B33A741BDC26F1AC10417E8B24C5012?text=&docid=215208&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=3595544

1. Facts

In 2014, the European Union Intellectual Property Office (EUIPO) registered, in favour of adidas, the following EU trade mark for clothing, footwear and headgear:

asdasdasd
In its application for registration, adidas had described the mark as consisting of three parallel equidistant stripes of identical width, applied on the product in any direction.

In 2016, following an application for declaration of invalidity filed by the Belgian undertaking Shoe Branding Europe BVBA, EUIPO annulled the registration of that mark on the ground that it was devoid of any distinctive character, both inherent and acquired through use. According to EUIPO, the mark should not have been registered. In particular, adidas had failed to establish that the mark had acquired distinctive character through use throughout the EU.

2. Decision

The General Court (GC) upholds the annulment decision, dismissing the action brought by adidas against the EUIPO decision.

The GC notes that the mark is not a pattern mark composed of a series of regularly repetitive elements, but an ordinary figurative mark, and that the forms of use which fail to respect the other essential characteristics of the mark, such as its colour scheme (black stripes against white background), cannot be taken into account. Therefore, EUIPO was correct to dismiss numerous pieces of evidence produced by adidas on the ground that they concern other signs, such as, in particular, signs for which the colour scheme had been reversed.
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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 (Sixth Chamber) of 27 March 2019, slewo – schlafen leben wohnen GmbH v Sascha Ledowski (Case C-681/17, EU:C:2019:255)

Reference for a preliminary ruling — Consumer protection — Directive 2011/83/EU — Article 6(1)(k) and Article 16(e) — Distance contract — Right of withdrawal — Exceptions — Concept of ‘sealed goods which are not suitable for return due to health protection or hygiene reasons and which have been unsealed by the consumer after delivery’ — Mattress whose protective seal has been removed by the consumer after delivery

The dispute in the main proceedings and the questions referred for a preliminary ruling

The request for a preliminary ruling was made in proceedings between slewo — schlafen leben wohnen GmbH (‘slewo’), an online trader which sells, inter alia, mattresses, and Mr Sascha Ledowski, concerning his exercise of his right of withdrawal in relation to a mattress purchased on slewo’s website.
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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 (Grand Chamber) of 26 March 2019, 
SM v Entry Clearance Officer, UK Visa Section (Case C-129/18, EU:C:2019:248)

Reference for a preliminary ruling — Citizenship of the European Union — Right of citizens of the Union and their family members to move and reside freely within the territory of the Member States — Directive 2004/38/EC — Family members of a citizen of the Union — Article 2(2)(c) — ‘Direct descendant’ — Child in permanent legal guardianship under the Algerian kafala (provision of care) system — Article 3(2)(a) — Other family members — Article 7 and Article 24(2) of the Charter of Fundamental Rights of the European Union — Family life — Best interests of the child

1. Facts

The request for a preliminary ruling was made in proceedings between a couple of French nationals and the Entry Clearance Officer, UK Visa Section, concerning the latter’s refusal to grant SM entry clearance for the territory of the United Kingdom as an adopted child. Abandoned by her biological parents at birth, SM was placed in the guardianship of the couple in 2011 under the Algerian kafala system. The application for entry clearance for the United Kingdom was refused on the ground that guardianship under the Algerian kafala system was not recognised as an adoption under United Kingdom law and that no application had been made for intercountry adoption.

The Supreme Court of the United Kingdom was called upon to hear the case on appeal and referred to the Court of Justice questions for a preliminary ruling on the interpretation of Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States (OJ 2004 L 158, p. 77).
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Summaries of judgments

 

Summaries of judgments made in collaboration with the Portuguese judges and référendaire of the General Court (Maria José Costeira, Ricardo Silva Passos and Esperança Mealha)
 ▪

Judgment of the General Court  (Third Chamber) of the 14th of May 2019, T-795/17, C. Moreira/EUIPO (Neymar)

http://curia.europa.eu/juris/document/document.jsf;jsessionid=2F7E92B2A7F19F8025819B84B2292322?text=&docid=214045&pageIndex=0&doclang=EN&mode=req&dir=&occ=first&part=1&cid=8873348)

EU trade mark — Invalidity proceedings — EU word mark NEYMAR — Declaration of invalidity — Bad faith — Article 52(1)(b) of Regulation (EC) No 207/2009 (now Article 59(1)(b) of Regulation (EU) 2017/1001

1. Facts

In December 2012, Mr C Moreira filed an application for registration of the word sign ‘NEYMAR’ as a EU trade mark, in respect of clothing, footwear and headgear. The mark was registered in April 2013.

In February 2016, Mr Neymar Da Silva Santos Júnior, filed an application with EUIPO for a declaration of invalidity against that mark in respect of all the goods covered by it. The application for a  declaration of invalidity was upheld by EUIPO.

Mr Moreira then brought an action before the General Court against the decision of EUIPO.

2. Decision

The Court begins to note that  it is demonstrate that Mr Neymar Da Silva Santos Júnior was already known in Europe at the relevant date and was already recognised as a very promising football player, having drawn the attention of top-flight clubs in Europe in view of future recruitment, several years before his actual transfer.

The Court also confirms that Mr Moreira possessed more than a little knowledge of the world of football, as proven by the fact that he filed an application for registration of the word mark ‘IKER CASILLAS’, a mark corresponding to the name of another famous football player, on the same day he sought registration of the mark ‘NEYMAR’.
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Summary of Comission v. Belgium – C-275/83

by José Ricardo Sousa, student of the Master's degree in EU Law of UMinho

Keywords: Social Security; Pensions; Regulation; Resident

Court: CJEU| DateMarch 28th 1983 | Case: C-275/83 | Applicants: European Comission vs Belgium

Summary:  European Comission brought an action pursuant the article 169 of the EEC Treaty against Beligum for disrespect of the obligations under article 33 of regulation n. 1408/71 that involves the application of social security schemes to employed persons and their families. The mentioned article provides that pension’s deductions may be made by an institution of a Member State only for people in these conditions: maternity leave or sickness. However this deductions have to be made by an institution of this Member State wherever could be the actual residence of one persons within the EU. CJEU concluded that the law in force was not comply with the requirements of Community Law.

The decision can be acessed here and the opinion of AG here.

Summary of Cassis Dijon – C-120/78

by José Ricardo Sousa, student of the Master's degree in EU Law of UMinho

Keywords: Common Market; Spirit Drinks, Importation, Minimum Content, Cassis Dijon

Court: CJEU| Date:  Feb. 20th 1979 | Case: C-120/78 | Applicants: Rewe-Zentral AG vs Bundesmonopolverwaltung Für Branntwein

Summary:  Rene-Zentral is a central cooperative undertaking that imports good from other Member States. On 14th September 1976 the company requested authorization for Bundesmonopolverwaltung (Federal Monopoly Administration for Spirits) to import a spirit drink called “Cassis Dijon”. Administration told to Rene-Zentral that there was no need to ask for authorization to import goods, however “Cassis Dijon” couldn’t be sold in Germany because the spirit drink didn’t fulfil the requirements of alcohol (wine-spirits must be around 32% and the mentioned mark had around 20%). Rene claimed that the German provision represented a restriction for the free movement of goods and contrary to article 30 and 37 of the EEC Treaty. Rene brought an action against the decision and the Court suspended the action and referred the following questions to CJEU:

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Summary of Internationale Handelsgesellschaft – 11/70

by José Ricardo Sousa, student of the Master's degree in EU Law of UMinho

Keywords: Deposit, Export licence, force majeure

Court: CJEU| DateDecember 12nd 1970 | Case: 11/70 | Applicants: Internationale Handelsgesellschaft mbH vs Einfuhr- und Vorratsstelle für Getreide und Futtermittel

Summary:  Internationale Handelsgesellschaft is an import-export undertaking. The company obtained 20 000 metric tons of maize meal with validity until 31st December 1967. According to article 12 of Regulation No 120/67 in what concerns to market of cereals. When the licence expired and the company delivered approximately 11 000 metric tons of cereal. After, Einfuhrund Vorratsstelle für Getreide und Futtermittel declared the deposit forfeited according to Regulation No 473/67/EEC. The undertaking brought an action to court against this decision. The Court suspended the action and sent to CJEU the following questions:

Are the obligation to export, laid down in the third subparagraph of Article 12 (1) of Regulation No 120/67/EEC of the Council of 13 June 1967, the lodging of a deposit, upon which such obligation is made conditional, and forfeiture of the deposit, where exportation is not effected during the period of validity of the export licence, legal? Continue reading “Summary of Internationale Handelsgesellschaft – 11/70”

Summary of Vassen Göbells – C-61/65

by José Ricardo Sousa, student of the Master's degree in EU Law of UMinho

Keywords: Pension, Sickness, Enforceable provisions, Survivors

Court: CJEU| DateDecember 10th 1965 | Case: C-61/65 | Applicants: Mrs Vassen vs Management of the Beambtendfonds voor het Mijnbedrif, Heerlen

Summary: Mrs Vassen was a widow of a mining employer. She was receiving a pension from a pension fund of the social secutrity (BFM), who placed her as a member of a sickness fund. On 31st August 1963 she went to live in Germany. She asked to remove her name from the list, and so the BFM replied saying that her name wasn’t on the list since she went to live in Germany. When Mrs Vassen asked to re-enter on the list, BFM rejected. The Court suspended the works and referred the following question to CJEU:

Is the scheme laid … to be regarded as legislation, as defined in Article 1 (b) of Regulation No 3 and mentioned in Article 4 thereof? Furthermore can the said scheme governing sickness expenses be classified as ‘sickness insurance for mine workers (benefits in cash and in kind in the event of sickness and maternity)’ listed at (i) under the heading ‘Netherlands’ in Annex B to Regulation No 3, to which Article 3 of the said Regulation refers? Thus does Regulation No 3 (and also Regulation No 4) apply to non-manual workers employed in the Netherlands mining industry to whomthe said scheme governing sickness expenses is applicable?
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