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)
 ▪

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:

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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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Building the ECJ puzzle on judicial independence in a Union based on the rule of law (Commission v Poland in the light of ASJP)

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 by Alessandra Silveira, Editor


On 27 February 2018, the ECJ delivered its judgment in the
Associação Sindical dos Juízes Portugueses case (C-64/16).[i] It is a judgment of far-reaching consequences for effective judicial protection and the rule of law within the European Union – and, arguably, for the construction of the legal-constitutional model that supports the European integration. Mainly because the question of judicial independence was assessed without any relevance having been given to the issue of whether or not the austerity measures in question were covered by EU law.[ii] It is worth recalling the circumstances of this case law to understand the following ECJ steps.

At the origin of the request for a preliminary ruling was a special administrative action brought before the Supremo Tribunal Administrativo (Supreme Administrative Court, Portugal) seeking the annulment of salary-reduction (administrative) measures of the judges of the Tribunal de Contas (Court of Auditors, Portugal). According to the Supremo Tribunal Administrativo, the measures for the temporary reduction in the amount of public sector remuneration, also applied to the members of the judiciary, were based on mandatory requirements for reducing the Portuguese State’s excessive budget deficit during the year 2011. The referring court therefore considered those measures as measures adopted within the framework of EU law or, at least, as being European in origin, on the ground that those requirements were imposed on the Portuguese Government by EU decisions granting financial assistance.

Besides, the legal action brought before the Supremo Tribunal Administrativo was accompanied with an opinion presented by me and my Colleague Pedro Froufe, two of the editors of this blog. The opinion intended to clarify the extent to which the subject matter fell within the scope of application of EU law, triggering the need to refer to the ECJ for a preliminary ruling.[iii] However, this did not play any role in the interpretation which led the Court to conclude that the second subparagraph of Article 19(1) TEU was applicable in the case in question. This is the password to understand this new standard and the following ECJ steps on judicial independence, in order to Article 19 TEU gives concrete expression to the value of the rule of law affirmed in Article 2 TEU.
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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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Algorithm-driven collusion

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 by Virgílio Pereira, collaborating member of CEDU

It has been said that digital markets are new and different.[i]  Indeed, competition enforcement reforms have already begun their journey, tackling the unorthodox dynamic of digital markets. Examples include the reforms taking place in Germany.[ii] They have entailed, among others, the possibility of setting up a digital agency, responsible for the supervision of digital markets, whose tasks would include dispute resolution in competition issues.[iii] Becoming vigilant and gathering know-how is certainly a valuable starting point.

Recently, the Council adopted the Commission’s proposal intended to empower Member States’ competition authorities to be more effective enforcers.[iv] It includes reinforcing competition authorities’ investigative powers, including their power to collect digital evidence. Discussion on the unorthodoxy of digital markets and challenges arising from them should take place within the context of the implementation of the Directive, or more generally, within the context of the European Competition Network.
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Indirect taxation on 3D printing – A new challenge for the European Union

IFA 2015

 by Andreia Barbosa, PhD candidate at UMINHO

3D printing (or rapid prototyping) is a form of additive manufacturing technology through which a three-dimensional model (height, depth and width, maxime, embossed) is created by successive layers of material. Think of the production of a computer mouse. The traditional production of this property implies that, in the first instance, the respective components are separately produced and subsequently assembled, giving rise to the mouse. Differently, through 3D printing the mouse for the computer will be printed as a whole, layer by layer – making the assembly process obsolete – and with the possibility of the product being customized, according to the model that has been developed.

That said, it is easy to conclude that in the case of models for 3D printing there is no corporeality to which we refer, so that, then, there will be no merchandise, which will only assume this quality when it is actually printed. That is to say, the 3D printing model, which is the subject of an international transaction, will not be regarded as a ‘good’ for customs purposes. Consequently, as customs duties constitute charges imposed on goods on the ground that they have crossed a customs line, no customs duties may be levied by the transmission of the model to be printed (which will be carried out electronically).
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Chronos vs. Brexit: why extending Article 50 and delaying Brexit might not be a feasible solution for the EU

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 by Tiago Cabral, Member of CEDU

1. If everything goes according to plan, the United Kingdom (UK) is currently set to leave the European Union (EU) on 29 March 2019 at 11.00 p.m. That is the date enshrined on the European Union (Withdrawal) Act 2018 and the British Government has a deal that, in theory, allows the UK to leave in the planned timeframe. Remarkably, the EU has managed to keep an extremely (and surprising) united front regarding the Brexit negotiations. It is noteworthy that the message from the Chairman of the Austrian People’s Party and current Austrian Prime-Minister Sebastian Kurz perfectly mirrors the one expressed by Jean-Claude Juncker or Donald Tusk.

2. However, in the UK nothing is going according to plan for Prime-Minister Theresa May. After the deal was announced and its contents revealed a number of ministers – both brexiters and remainers – resigned from the cabinet. Seizing the opportunity to press for a harder Brexit, Jacob Rees-Mogg, the current chairman of the “European Research Group” (a group of hard-Brexit leaning MPs) started pushing for a vote on May’s leadership of the conservative party and (in practice) premiership. Said attempted failed to get the backing of enough MPs (for now) but could find new breath if the current deal is rejected by parliament. On that note, the current deal is most likely than not to be indeed rejected. About 100 conservative MPs have already stated on record that they would vote against it, and most of the opposition parties (including the DUP that has been keeping the government afloat) promised to do the same. The vote is set to happen on 11 December.
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