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 11 June 2020, LE v Transportes Aéreos Portugueses SA, Case C-74/19, EU:C:2020:460

Reference for a preliminary ruling — Air transport — Regulation (EC) No 261/2004 — Article 5(3) — Article 7(1) — Compensation to passengers in the event of denied boarding and of cancellation or long delay of flights — Exemption — Concept of ‘extraordinary circumstances’ — Unruly passengers — Possibility of relying on the occurrence of an extraordinary circumstance in respect of a flight not affected by that circumstance — Concept of ‘reasonable measures’

Facts

The dispute in the main proceedings is between a passenger and the air carrier Transportes Aéreos Portugueses (TAP) concerning its refusal to compensate that passenger whose connecting flight was subject to a long delay in arrival at its final destination. The passenger in question had made a reservation with TAP for a flight from Fortaleza (Brazil) to Oslo (Norway) with a stopover in Lisbon (Portugal).  The flight was operated on 21 and 22 August 2017 with a delay in arrival in Oslo of almost 24 hours. The delay was due to the fact that the passenger in question was unable to board the second leg of the connecting flight from Lisbon to Oslo because of a delay in the arrival of the first flight from Fortaleza to Lisbon. This delay was due to the fact that the aircraft which operated that flight, on its previous flight from Lisbon to Fortaleza, had had to be diverted to Las Palmas de Gran Canaria (Spain) in order to disembark an unruly passenger who had bitten a passenger and assaulted other passengers and members of the cabin crew. The passenger in question was therefore flown to Oslo on the next flight operated by TAP the following day.
Continue reading “Summaries of judgments”

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 23 April 2020,Associazione Avvocatura per i diritti LGBTI, Case C-507/18, EU:C:2020:289

Reference for a preliminary ruling – Equal treatment in employment and occupation –Directive 2000/78/EC – Article 3(1)(a), Article 8(1) and Article 9(2) – Prohibition of discrimination based on sexual orientation – Conditions for access to employment or to occupation – Concept – Public statements ruling out recruitment of homosexual persons – Article 11(1), Article 15(1) and Article 21(1) of the Charter of Fundamental Rights of the European Union – Defence of rights – Sanctions – Legal entity representing a collective interest – Standing to bring proceedings without acting in the name of a specific complainant or in the absence of an injured party – Right to damages

Facts

In the case, a lawyer had stated, in an interview given during a radio programme, that he would not wish to recruit homosexual persons to his firm nor to use the services of such persons in his firm. Having taken the view that that lawyer had made remarks constituting discrimination on the ground of the sexual orientation of workers, an association of lawyers that defends the rights of lesbian, gay, bisexual, transgender or intersex (LGBTI) persons in court proceedings brought proceedings against him for damages. The action having been successful at first instance and that ruling having been upheld on appeal, the lawyer appealed in cassation, against the judgment delivered in the appeal, before the Corte suprema di cassazione (Supreme Court of Cassation, Italy), which then sought a preliminary ruling from the Court of Justice on, inter alia, the interpretation of the concept of “conditions for access to employment … and to occupation”, within the meaning of Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation (OJ 2000 L 303, p. 16).

Decision

After recalling that that concept must be given an autonomous and uniform interpretation throughout the EU and cannot be interpreted restrictively, the Court interpreted that concept by reference to its judgment of 25 April 2013, Asociația Accept, C‑81/12, EU:C:2013:275. The Court held that statements made by a person during an audiovisual programme, according to which that person would never recruit persons of a certain sexual orientation to that person’s undertaking or wish to use the services of such persons, fall within the material scope of Directive 2000/78 and, more particularly, within the concept of “conditions for access to employment …or to occupation” within the meaning of Article 3(1)(a) of that directive, even if no recruitment procedure had been opened, nor was planned, at the time when those statements were made, provided, however, that the link between those statements and the conditions for access to employment or to occupation within the undertaking is not hypothetical.

Whether such a link exists must be assessed by the national courts on the basis of all the circumstances characterising those statements. Relevant criteria in that regard are the status of the person making the statements and the capacity in which he or she made them, which must establish either that he or she is a potential employer or is, in law or in fact, capable of exerting a decisive influence on the recruitment policy or a recruitment decision of a potential employer, or, at the very least, may be perceived by the public or the social groups concerned as being capable of exerting such influence. The national courts must also take into account the nature and content of the statements concerned, that must relate to the conditions for access to employment or to occupation with the employer concerned and establish the employer’s intention to discriminate on the basis of one of the criteria laid down by Directive 2000/78, and the context in which they were made, in particular their public or private character.

According to the Court, the fact that that interpretation of “conditions for access to employment … or to occupation” may entail a possible limitation to the exercise of freedom of expression does not call that interpretation into question. Indeed, the limitations result directly from Directive 2000/78 and are applied only for the purpose of attaining its objectives, namely to safeguard the principle of equal treatment in employment and occupation and the attainment of a high level of employment and social protection. In addition, the limitations arising from Directive 2000/78 to the exercise of freedom of expression are necessary to guarantee the rights in matters of employment and occupation of the persons covered by that directive, and do not go beyond what is necessary to attain the objectives of that directive, in that only statements that constitute discrimination in employment and occupation are prohibited.

Last, the Court ruled that Directive 2000/78 does not preclude national legislation under which an association of lawyers whose objective, according to its statutes, is the judicial protection of persons having in particular a certain sexual orientation and the promotion of the culture and respect for the rights of that category of persons, automatically, on account of that objective and irrespective of whether it is a for-profit association, has standing to bring legal proceedings for the enforcement of obligations under that directive and, where appropriate, to obtain damages, in circumstances that are capable of constituting discrimination, within the meaning of that directive, against that category of persons and it is not possible to identify an injured party. The Court made clear in that regard that although the directive does not require an association such as that at issue in the main proceedings to be given such standing where no injured party can be identified, it does give the Member States the option of introducing or maintaining provisions which are more favourable to the protection of the principle of equal treatment. It is therefore for the Member States which have chosen that option to decide under which conditions an association may bring legal proceedings for a finding of discrimination prohibited by Directive 2000/78 and for a sanction to be imposed in respect of such discrimination. It is in particular for the Member State to determine whether the for-profit or non-profit status of the association is to have a bearing on the assessment of its standing to bring such proceedings, and to specify the scope of such an action, in particular the sanctions that may be imposed, such sanctions being required, in accordance with Article 17 of Directive 2000/78, to be effective, proportionate and dissuasive, regardless of whether there is any identifiable injured party.

 

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 January 2020, GAEC Jeanningros v Institut national de l’origine et de la qualité (INAO) and Others – Case C-785/18, EU:C:2020:46

Reference for a preliminary ruling – Agriculture – Protection of geographical indications and designations of origin for agricultural products and foodstuffs – Protected designation of origin ‘Comté’ – Minor amendment to a product specification – Action before national courts contesting an application for an amendment – Case-law of the national courts according to which the action becomes devoid of purpose when the European Commission has approved the amendment – Effective judicial protection – Obligation to rule on the action

1. Facts

The request for a preliminary ruling concerned the interpretation of, inter alia, Article 53 of Regulation (EU) No 1151/2012 of the European Parliament and of the Council of 21 November 2012 on quality schemes for agricultural products and foodstuffs (OJ 2012 L 343, p. 1). The main proceedings concerned the amendment of the product specification for the protected designation of origin (PDO) ‘Comté’.

On 8 September 2017, the Minister for Agriculture and Food and the Minister for Economic Affairs and Finance (France) issued a decree approving a minor amendment to the product specification for the ‘Comté’ PDO with a view to submitting that minor amendment to the Commission for approval, in accordance with the procedure laid down in Article 53 of Regulation No 1151/2012. By an action brought on 16 November 2017 before the Conseil d’État (Council of State, France), GAEC Jeanningros sought the annulment of the decree, in so far as it approved that minor amendment. While those proceedings were still pending, by decision published on 1 June 2018 (OJ 2018 C 187, p. 7), the Commission approved the application for a minor amendment to the product specification for the ‘Comté’ PDO at issue, in accordance with the second subparagraph of Article 53(2) of Regulation No 1151/2012.
Continue reading “Summaries of judgments”

Direct effect, interpretation in conformity and primacy in times of COVID-19 – topic reflexions in an interjurisdictional approach in the EU

bands-paper-red-texture-striping-plastic

 by Joana Abreu, Editor and Jean Monnet Module eUjust Coordinator

Departing from the previous UNIO Blog’s contribution “VAT and customs duties in COVID-19 times in the European Union – do the ends justify all means?”, authored by Andreia Barbosa, some other EU law fundamental questions arose concerning the principle of direct effect and its directions, particularly when it is related to Directives’ rules, and its symbiotic relations with primacy and interpretation in conformity.

The consistent jurisprudence of the ECJ (despite doctrinal criticism on the matter) widely exposed its fundamental requirements when the direct effect of a Directive’s rule is being assessed, i.e., there is a need for it to i) create a right in the individuals’ legal sphere; ii) which has to be stated in clear / precise and unconditioned terms; iii) lacking of concretization’s need by a European or national rule.
Continue reading “Direct effect, interpretation in conformity and primacy in times of COVID-19 – topic reflexions in an interjurisdictional approach in the EU”

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 (Seventh Chamber) of 12 December 2019 – T‑683/18

EU trade mark – Application for EU figurative mark CANNABIS STORE AMSTERDAM – Absolute ground for refusal – Trade mark contrary to public policy – Article 7(1)(f) of Regulation (EU) 2017/1001 – Article 7(2) of Regulation 2017/1001

1 – Facts

In 2016, Santa Conte, resident in Naples (Italy), filed an application for registration of an EU trade mark for food, drink and restaurant services with the European Union Intellectual Property Office (EUIPO), as reproduced below:

photo

Registration was refused on the basis of Article 7(1)(f) of Regulation No 2017/1001, according to which “shall not be registered (…) trade marks which are contrary to public policy or to accepted principles of morality”.

Disagreeing with this decision, Santa Conte challenged EUIPO’s decision before the General Court of the European Union (GC).
Continue reading “Summaries of judgments”

We are all in the same boat! On the legal principle of solidarity and its legal implications in the recent CJEU case law

5443243347_f20715f9cb_o

by Alessandra Silveira, Editor

The Opinion of the Advocate-General Eleanor Sharpston in the joined cases C-715/17, C‑718/17 and C‑719/17 (delivered on 31 October 2019) concluded by recalling an old story from the Jewish tradition that deserves wider circulation – particularly in times of COVID-19 pandemic. A group of men are travelling together in a boat. Suddenly, one of them takes out an auger and starts to bore a hole in the hull beneath himself. His companions remonstrate with him. ‘Why are you doing that?’ they cry. ‘What are you complaining about?’ says he. ‘Am I not drilling the hole under my own seat?’ ‘Yes,’ they reply, ‘but the water will come in and flood the boat for all of us’ (paragraph 255).

The story is recalled by the Advocate-General regarding the principle of solidarity provided in Article 80 TFEU: “The policies of the Union set out in this Chapter [‘Policies on border checks, asylum and immigration’] and their implementation shall be governed by the principle of solidarity and fair sharing of responsibility, including its financial implications, between the Member States. Wherever necessary, Union acts adopted pursuant to this Chapter shall contain appropriate measures to give effect to this principle”.

On this principle – which requires all Member States – the Advocate-General stated that “respecting the ‘rules of the club’ and playing one’s proper part in solidarity with fellow Europeans cannot be based on a penny-pinching cost-benefit analysis along the lines (familiar, alas, from Brexiteer rhetoric) of ‘what precisely does the EU cost me per week and what exactly do I personally get out of it?’ Such self-centredness is a betrayal of the founding fathers’ vision for a peaceful and prosperous continent. It is the antithesis of being a loyal Member State and being worthy, as an individual, of shared European citizenship. If the European project is to prosper and go forward, we must all do better than that” (paragraph 254 of the Opinion).
Continue reading “We are all in the same boat! On the legal principle of solidarity and its legal implications in the recent CJEU case law”

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 12 November 2019, Zubair Haqbin v Federaal Agentschap voor de opvang van asielzoekers – Case C-233/18, EU:C:2019:956

Reference for a preliminary ruling — Applicants for international protection — Directive 2013/33/EU — Article 20(4) and (5) — Serious breaches of the rules of the accommodation centres as well as seriously violent behaviour — Scope of the Member States’ right to determine the sanctions applicable — Unaccompanied minor — Reduction or withdrawal of material reception conditions

Facts

The Court of Justice ruled for the first time on the scope of the right conferred on Member States by Article 20(4) Directive 2013/33/EU of the European Parliament and of the Council of 26 June 2013 laying down standards for the reception of applicants for international protection (OJ 2013 L 180, p. 96). The request for a preliminary ruling has been made in proceedings between Z. Haqbin and the Federaal Agentschap voor de opvang van asielzoekers (Federal agency for the reception of asylum seekers, Belgium) concerning a claim for compensation brought by the former following a decision to temporarily excluded him from material reception conditions.

Z. Haqbin, of Afghan nationality, arrived in Belgium as an unaccompanied minor and lodged an application for international protection on December 2015. He was then hosted in a reception centre. In that centre, Z. Haqbin was involved in a brawl with other residents of various ethnic origins. Following that brawl, the director of the reception centre decided to exclude Z. Haqbin for a period of 15 days from material aid in a reception facility. During that period of exclusion (between April and May 2016), Z. Haqbin, according to his own statements, spent his nights in a park in Brussels and stayed with friends.

Z. Haqbin lodged an application to suspend the exclusion measure referred above. That application was dismissed for lack of extreme urgency, since Z. Haqbin had failed to show that he was homeless. Z. Haqbin then brought an action seeking cancellation of that measure and compensation for the damage suffered. The referring court before which Z. Haqbin lodged an appeal against the first-instance ruling that dismissed his action, asked the Court of Justice whether it was possible for the Belgian authorities to withdraw or reduce material reception conditions in respect of an applicant for international protection in Z. Haqbin’s situation. Moreover, with regard to his particular situation, the question arose as to the conditions under which such a sanction can be imposed on an unaccompanied minor.

Decision

Article 20(4) of Directive 2013/33 states that Member States may determine ‘sanctions’ applicable to serious breaches, by the applicant, of the rules of the accommodation centres as well as to seriously violent behaviour of the applicant. In that regard, the Court of Justice clarified that the ‘sanctions’ referred to in Article 20(4) of Directive 2013/33 may, in principle, concern material reception conditions. However, such sanctions must, in accordance with Article 20(5) of the directive, be objective, impartial, motivated and proportionate to the particular situation of the applicant and must, under all circumstances, ensure a dignified standard of living according to Article 1 CFREU.

Therefore, a sanction that is imposed exclusively on the basis of one of the reasons mentioned in Article 20(4) of Directive 2013/33 and consists in the withdrawal, even if only a temporary one, of the full set of material reception conditions or of material reception conditions relating to housing, food or clothing would be irreconcilable with the requirement, arising from Article 20(5) of the directive, to ensure a dignified standard of living for the applicant, since it would preclude the applicant from being allowed to meet his or her most basic needs. Such a sanction would also amount to a failure to comply with the proportionality requirement under Article 20(5) of Directive 2013/33, in so far as even the most stringent sanctions, whose objective is to punish, in criminal law, the breaches or behaviour referred to in Article 20(4) of the directive, cannot deprive the applicant of the possibility of meeting his or her most basic needs. The Court added that Member States are required to guarantee continuously and without interruption a dignified standard of living and that the authorities of the Member States are required to ensure, under their supervision and under their own responsibility, the provision of material reception conditions guaranteeing such a standard of living, including when they have recourse, where appropriate, to private natural or legal persons in order to carry out, under their authority, that obligation.
Continue reading “Summaries of judgments”

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) of 24 October 2019 – T 310/18 – EPSU and Goudriaan v European Commission

“Social policy – Dialogue between management and labour at European Union level – Agreement entitled ‘General framework for informing and consulting officials and other servants of central government administrations’ – Joint request by the signatory parties for application of that agreement at European Union level – Refusal by the Commission to submit a proposal for a decision to the Council – Action for annulment – Act against which proceedings may be brought – Admissibility – Commission’s discretion – Autonomy of the social partners – Principle of subsidiarity – Proportionality”.

1 – Facts

On April 10th 2015, the European Commission invited the social partners, on the basis of Article 154(2) TFEU, to comment on the possible direction of EU action to consolidate the Directives on information and consultation of workers. That consultation focused in particular on the possible extension of the scope of those Directives to officials and other servants of public administrations in the Member States.

On June 2nd 2015, the social partners of the Social Dialogue Committee for central government administrations, namely the Trade Union Delegation of the National and European Administration (DSANE) and the European Public Administration Employers (EPAE), informed the Commission, on the basis of Article 154(4) TFEU, of their wish to negotiate and conclude an agreement on the basis of Article 155(1) TFEU.
Continue reading “Summaries of judgments”

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

Facts

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.

Decision

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’.

 

Judicial independence in Poland and Hungary – Going, Going, Gone? Preliminary Requests and Disciplinary Procedures – A shocking development

3426684432_b5e854371e_o

 by José Igreja Matos, President of the European Association of Judges

1. Stating the obvious

The reference for a preliminary ruling, provided for Article 19(3)(b) of the Treaty on European Union and Article 267 of the Treaty on the Functioning of the European Union is an essential instrument for the European Union and, in particular, for national judges.

It is aimed to guarantee the uniform interpretation and application of EU law by offering to the courts and tribunals of Member States a procedure to acquire from the Court of Justice of the European Union a preliminary ruling concerning the interpretation of EU law or the validity of acts adopted by the institutions of the Union.

As easily predictable, the impact of a preliminary ruling procedure in EU legal system is immense also because the rulings of European Court of Justice (ECJ) are assumed as generally binding.

The ECJ itself does not have a power to enforce the accurate application of EU law; this is the reason why national courts or tribunals are obliged to bring the matters in question before the Court as frontrunners of the application of EU law.

The reference for a preliminary ruling is the only way for the national judges to directly convey with ECJ. This procedure helps the ECJ control on how the national courts apply EU law providing the uniformity and certainty essentials to the success of our Union.

Another aspect of major significance could be furthermore underlined: the preliminary ruling also ensures the protection of the rights of individuals. EU laws, in particular the criminal law, fall to be interpreted in accordance with the Charter of Fundamental Rights. The Article 6(1) of the Treaty of European Union affirms: “The Union recognises the rights, freedoms and principles set out in the Charter of Fundamental Rights of the European Union … which shall have the same legal value as the Treaties”. In general terms, the Charter applies to Member States when they implement Union law (Case C-292/97 Karlsson and Others); therefore, the interpretation of the Charter provisions tends to be, if not now, in the foreseeable future, a fertile ground for the use of the preliminary ruling procedures.

The Member States are bound to respect fundamental rights in judicial cooperation, for instance, if a Member State is extraditing someone to another Member State in accordance with the scheme established by the European Arrest Warrant Framework Decision.
Continue reading “Judicial independence in Poland and Hungary – Going, Going, Gone? Preliminary Requests and Disciplinary Procedures – A shocking development”