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) 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)
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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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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.
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On the CJEU’s post-Brexit case-law on European citizenship. The recovery of the identity Ariadne’s thread?

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by Professor Alessandra Silveira, Editor

The CJEU over the years has helped forging a concept of citizenship directed to be the “fundamental status of Member States nationals”. However, since the ruling Dereci of 2011, the proactivity of the CJEU concerning the development of the European citizenship seemed to have gradually exhausted its potentialities, mostly on the so-called social citizenship. It happens, tough, that the crucial moment the European Union faces demands the enhancement of its vertical relation with the citizens it upholds – it is either this or fragmentation. And maybe this is the subliminal message from the CJEU in three post-Brexit rulings that, decided in the Grand Chamber, surprisingly recover and develop the most emblematic case-law about the European citizenship – namely the Rottmann[i] and Zambrano[ii] rulings – whose political potential and/or identity potential seemed irrevocably muzzled.

In the ruling Rendón Marín[iii] and CS[iv], the core issue involved the expulsion and the automatic refusal of the concession of residence to third states nationals who have a dependent minor European citizen – in  both cases due to the parent’s criminal records. The CJEU recovered the Zambrano assertion, according to which Article 20, TFEU precludes national provisions that 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[v] and, in this sense, it must be attributed the derived right of residence to the national from a third State, under this risk of the useful effect of the European citizenship being affected, if the minor is forced to leave the territory of the Union to follow his/her parent[vi]. In both rulings, the novelty is the way the CJEU appreciates, in the light of the fundamental rights of the European citizen, the possibility of a Member State to introduce limits to such derived right of residence which arises from Article 20, TFEU.

Continue reading “On the CJEU’s post-Brexit case-law on European citizenship. The recovery of the identity Ariadne’s thread?”

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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Summary of Tetra Pak – T-51/89

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

Keywords: Common Market, Abuse, Dominant Position, European Commission, Exemption.

Court: CJEU, General Court | DateJune 10th 1990 | Case: T-51/89 | Applicants: Tetra Pak Raussing S.A. vs European Commission

Summary: On 26th July 1988, European Commission declared that Tetra Pak Raussing S.A. was in breach of article 86 of the EEC Treaty because by purchasing LiquiPak, they would have access to LiquiPak’s exclusivity contract of patent. This exclusive licence relates to a new UHT milk-packaging process. On 26th June 1986, EloPak made a complaint to the European Commission contesting TetraPak act according to articles 85 and 86 of the EEC Treaty. European Commission concluded that TetraPak infringed article 86 of the EEC Treaty by abusing its dominant position. TetraPak contested the decision and appealed to First Instance Court based on the argument that European Commission couldn’t disallow the deal based on article 86 when this deal is an exemption to n.3 of article 85 of the EEC Treaty. This argument is separated in three sub-categories:

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Summary of Brasserie du Pêcheur & Factortame – C-46/93 and C-48/93

 

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

Keywords: liability of the state; legislator; claims; repair; individual’s rights

Court: CJEU | DateMarch 5th 1996 | Cases: C46/93 and C-48/93 | Applicants: Brasserie du Pêcheur vs Federal Republic of Germany

Summary: This judgment contains two similar cases connected to the same matter: liability of the State.

In the first case, the French company Brasserie du Pêcheur was obliged to cease their exportations from Germany due to German authorithies’ allegations that the beer did not fulfill purity requirement. European Comission interfered in this case and stated that this provisions were contrary to article 30 of EEC Treaty and brought an infringement proceedings against German Federal Republic. On 12th March 1987, the court confirmed EC’s arguments and consequently condemned the German act. Therefore, Brasserie du Pêcheur moves another action to reclaim their losses. The Court had doubts related to the limits of liability of the State and internal law and so they decided to send a question to the CJEU.

In the second case, Factortame intented an action in High Court of Justice with the purpose to challenge the compatibility of Part II of the Merchant Shipping Act with article 52 of the EEC Treaty. This law predicted a new register for British fishing boats and it pretended to obligate vessel’s registration, including those already registered, according to some conditions relating to nationality. The boats that couldn’t be registered were forbidden to fish. In another previous judgement, CJEU considered that this law was contrary to Communitary law, but it was not contrary that all the boats in UK suffered more controled by the authorities. On 4th August 1989, European Comission brought infringement proceedings against UK to suspend nationality requests because they were contrary to articles 7, 52 and 221 of the EEC Treaty. Afterwards, the Court decided to call the intervenients to show the amount of claims, however the Court had doubts in what refers to include a claim for inconstitutional behaviour and send a question to CJEU.

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