Court of Justice of the European Union
Luxembourg, 21 July 2011

The Court of Justice partially sets aside the judgment of the General Court and partially annuls the decisions of the Commission refusing access to certain of its internal documents relating to a closed merger procedure

In order to justify its refusal, the Commission must set out the specific reasons supporting the conclusion that their disclosure would seriously undermine the decision-making process of the institution and the protection of legal advice

The Access to Documents Regulation(1) confers on the public a wide right of access to documents of the institutions of the European Union. However, it provides for a system of exceptions authorising the institutions to refuse access to a document in cases where its disclosure would undermine, in particular, the decision-making process and the protection of legal opinions, unless there is an overriding public interest in disclosure.
The present case forms part of a dispute originating in 1999, when MyTravel (then called Airtours), a UK tour operator, informed the Commission of a planned merger with its competitor First Choice in order to obtain a decision authorising that operation. Authorisation was refused(2) on the ground that it was incompatible with the common market. Following the action brought by MyTravel, the Commission’s decision was annulled by a judgment of the General Court of 6 June 2002(3).
The Commission then established a working group comprising officials of the Directorate-General for Competition (‘DG Competition’) and the legal service in order to consider whether it was appropriate to bring an appeal against that judgment and to assess the implications of that judgment for merger control procedures or in other areas. The report of the working group was presented to the Commissioner responsible for competition prior to the expiry of the period allowed for bringing an appeal against the judgment of the General Court.
MyTravel made a request to the Commission for access to the report, to the documents relating to its preparation and the documents contained in the file relating to the merger, on which the report was based.
By two separate decisions(4), the Commission refused to communicate those documents on the ground that, first, their disclosure would undermine, in particular, the decision-making process and the protection of legal opinions and, secondly, there was no overriding public interest in disclosure.
By judgment of 9 September 2008(5), the General Court dismissed the action by MyTravel against those decisions on the ground that the Commission was entitled to refuse access to the documents requested in so far as their communication could have undermined the protection of the decision-making process of the institution and the protection of legal advice. Subsequently, Sweden decided to apply to the Court of Justice to have that judgment of the General Court set aside.
First of all, the Court states that some of the documents concerned fall within the context of the administrative functions of the Commission. That administrative activity does not require as extensive an access to documents as that concerning the legislative activity of an institution of the Union. However, that does not in any way mean that such an activity escapes the rules laid down by the access to documents legislation.
That legislation provides for exceptions which derogate from the principle that the public should have the widest possible access to documents, and those exceptions must therefore be interpreted and applied strictly. The Court considers that, where an institution decides to refuse access to a document which it has been requested to communicate, it must, in principle, explain how disclosure of that document could specifically and effectively undermine the protected interest – in particular protection of the decision-making process of the institution and the protection of legal advice – upon which it is relying in the particular case.
With regard to the exception for protecting the decision-making process of the institution, the Court notes that MyTravel introduced its request for access after the expiry of the time-limit for appealing against the judgment of the General Court which had annulled the Commission decision concerning the merger in question. The Court of Justice analyses all of the documents concerned and concludes, in particular, that the General Court should have required the Commission to indicate the specific reasons why it considered that the disclosure of certain documents at issue would seriously undermine the decision-making process of that institution, even though the procedure to which those documents related was closed.
Concerning the exception for protecting legal advice, the General Court took the view, in particular, that the disclosure of internal notes of the Commission’s legal service would risk communicating to the public information on the state of internal discussions between DG Competition and the legal service on the lawfulness of the 1999 decision declaring the concentration operation in question incompatible with the common market, which could call into question the lawfulness of future decisions in the same sector. The Court of Justice holds, in this respect, that openness contributes to conferring greater legitimacy on the institutions in the eyes of European citizens and increasing their confidence in them by allowing divergences between various points of view to be openly debated.
The Court of Justice therefore concludes that, in its decisions, the Commission misapplied both the exception for protecting its decision-making process and the exception for protecting legal advice. It has therefore decided to set aside the judgment of the General Court and annul the two decisions of the Commission on those points.
Since some of the arguments relied on by the Commission in refusing to disclose certain other internal documents – in particular those relating to the other exceptions concerning protection of the purpose of inspections, investigations and audits – were not examined by the General Court, the Court of Justice considers that it is not in a position to rule on those arguments and has decided to refer the matter back to the General Court for a new judgment.

1 Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (OJ 2001 L 145, p. 43)
2 Commission Decision 2000/276/EC of 22 September 1999 declaring a concentration to be incompatible with the common market and the EEA Agreement (Case IV/M.1524 – Airtours/First Choice) (OJ 2000 L 93, p. 1)
3 Case T-342/99 Airtours v Commission (see also Press Release 50/02)
4 Commission Decision D(2005) 8461 of 5 September 2005 and Commission Decision D(2005) 9763 of 12 October 2005
5 Case T-403/05 MyTravel v Commission

Add Comment  Making integration a win-win situation 27/07/2011 0 Comments   Immigration and asylum - 25/07/2011

EU citizens and migrants alike agree that integration requires language skills, employment, respect for the local culture and an unambiguous legal status.

Migrants to the EU bring with them not only diversity, but also the potential to make a valuable contribution to economic growth and stability.

As Europe's population ages and birth rates remain low, migrants can help sustain the EU economy and finance national welfare systems. But not unless they are fully integrated into their host countries.

A new package of measures proposed by the Commission would facilitate integration through language learning, easier access to employment, education and training, plus efforts to fight discrimination.

Integration policies are the responsibility of national governments. But the EU can offer support and incentives - through funding, policy coordination and facilitating the exchange of best practices. The new measures would encourage action at local level, including cooperation between local authorities, employers, migrant organisations, service providers and local residents.

Each EU country, region or city would choose the measures most appropriate for its circumstances, and EU-wide indicators would monitor the results.

Progress should not be difficult, given the results from a recent Eurobarometer survey on migrant integration, which show that both EU citizens and migrants largely agree on the factors that help integration.

Conducted in March and April 2011, the survey found agreement that more effort is needed from all sides - from governments, migrants themselves and the general public.

EU citizens and migrants alike have similar views on the factors influencing integration. Speaking the language of the host nation, being able to work, respecting the local culture and enjoying an unambiguous legal status were the top four factors - with language being the most important for both groups.

Both also agreed on the importance of interaction at work and in schools, and on the detrimental impact of segregation between neighbourhoods.

The EU is home to 20.1 million migrants from non-EU countries, around 4% of the population.

EU website on integration

Link: Add Comment  Judgment in Joined Cases C-4/10 and C-27/10 Bureau national interprofessionel du Cognac v Gust. Ranin Oy 18/07/2011 0 Comments   Court of Justice of the European Union
Luxembourg, 14 July 2011

A trade mark containing the geographical indication ‘Cognac’ cannot be registered to designate a spirit drink not covered by that indication
The commercial use of such a mark would adversely affect the protected indication
Under the regulation on the protection of geographical indications for spirit drinks1, it is possible to register as a geographical indication the name of a country, region or locality from which a spirit drink originates, where a given quality, reputation or other characteristic of that drink is essentially attributable to its geographical origin. A registration of that kind is made upon application by the Member State of origin of the drink. The application must be accompanied by a technical file listing the specifications which the drink must meet if it is to be able to be designated by the protected geographical indication.
Furthermore, the regulation prohibits the registration of trade marks which may adversely affect a protected geographical indication and states that, as a general rule, where such a mark has already been registered, it must be invalidated.
The regulation mentions ‘Cognac’ as a geographical indication identifying wine spirits originating from France.
Gust. Ranin Oy, a Finnish company, applied in Finland for the registration, for spirit drinks, of two figurative marks in the form of a bottle label bearing descriptions of the spirit drinks containing the term ‘Cognac’ and its Finnish translation, ‘konjakki’. Although the Finnish authorities have accepted the application for registration, the Bureau national interprofessionel du Cognac – a French organisation of cognac producers – contests the legality of that registration before the Finnish courts.
The Korkein hallinto-oikeus (Supreme Administrative Court, Finland) asks the Court of Justice whether it is permissible under the regulation to register national trade marks containing the term ‘Cognac’ for products which, in terms of manufacturing method and alcohol content, do not meet the requirements set for the use of the geographical indication ‘Cognac’.
In its judgment given today, the Court states, first of all, that although the contested marks were registered on 31 January 2003 – that is to say, before the regulation entered into force – that regulation is applicable in the present case. In that connection, the Court observes that the retrospective application of the regulation does not undermine the principle of legal certainty or the principle of the protection of legitimate expectations. The obligation on Member States to prevent the use of a geographical indication identifying spirits for alcoholic beverages which do not originate from the place designated by that indication has existed in EU law since 1 January 1996.
Next, the Court observes that the two Finnish trade marks, registered on 31 January 2003, cannot benefit from the derogation provided for under the regulation, in accordance with which the use of a mark which was acquired before the date of protection of the geographical indication in the country of origin (or before 1 January 1996) is permitted, even if it adversely affects the geographical indication concerned. In that regard, the Court points out that, independently of the protection it enjoys under French law, the term ‘Cognac’ has been protected as a geographical indication under EU law since 15 June 1989.
The Court also finds that the use of a mark containing the term ‘Cognac’ for products which are not covered by that indication constitutes a direct commercial use of the protected indication. Such a use is prohibited by the regulation in so far as it concerns comparable products. The Court finds that this may be the position in the case of spirit drinks.
Likewise, the Court finds that the fact that the two Finnish marks incorporate part of the name ‘Cognac’ means that, when the consumer is confronted with the name of the marks on the bottles of spirit drinks not covered by the protected indication, the image triggered in his mind is that of the product whose designation is protected. The Court points out that such ‘evocation’ is also prohibited under the regulation.
In those circumstances, the Court holds that the Finnish authorities must invalidate the registration of the contested marks.

1 Regulation (EC) No 110/2008 of the European Parliament and of the Council of 15 January 2008 on the definition, description, presentation, labelling and the protection of geographical indications of spirit drinks and repealing Council Regulation (EEC) No 1576/89 (OJ 2008 L 39, p. 16).

Link: Add Comment  Advocate General’s Opinion in Case C-27/09 P France v People's Mojahedin Organization of Iran 18/07/2011 0 Comments   Court of Justice of the European Union
Luxembourg, 14 July 2011

Advocate General Sharpston suggests that the Court reject France’s appeal against the General Court’s judgment removing PMOI from the EU terrorist list
In so doing she suggests a number of improvements that could be made to procedures so as to ensure an appropriate balance between the need to combat terrorism and the respect of fundamental rights
In December 2008, the Court of First Instance (now called the General Court), annulled a Council Decision including the People’s Mojahedin Organisation of Iran on the European list of terrorist organisations whose funds and other financial assets were to be frozen1. This was the third occasion on which that Court had annulled a decision of this kind.
The previous decisions that had been annulled by the General Court2 had been based on the existence of a UK decision proscribing PMOI, the existence of such a decision by a competent authority at national level being a prerequisite for including an organisation on the EU list. However, PMOI was removed from the list of proscribed organisations in the UK on 24 June 2008, following a ruling of a national court in November 2007 which described that listing as “perverse” and “unreasonable”.
When, on 15 July 2008, the Council adopted a new decision3 updating the EU list, it nevertheless maintained PMOI on the list. The inclusion of PMOI was based on information provided by the French Government as to (i) the opening of a judicial inquiry by the anti-terrorist prosecutor's office of the Tribunal de grande instance de Paris (Regional Court, Paris) in 2001 and (ii) two supplementary charges brought in 2007 against persons presumed to be members of PMOI. Information to this effect was communicated by the Council to PMOI on the day the decision was adopted.
Annulling this decision, the General Court found that the Council had violated the rights of defence of PMOI by not communicating this new information before adopting the decision.
Whilst this in itself was sufficient to annul the decision, the General Court, for the sake of completeness, also examined the other arguments put forward by PMOI. In particular it found that the opening of a judicial inquiry and the two supplementary charges did not constitute a decision by a competent authority, in respect of PMOI itself, noting that no reasons were advanced as to why the acts ascribed to the alleged members of PMOI should be attributed to that organisation itself. Furthermore, the Court found that by failing to communicate to the Court certain information about the case which the French authorities refused to declassify, the Council had equally infringed the fundamental right of PMOI to effective judicial protection.
France appealed against this judgment to the Court of Justice.
In her Opinion issued today, Advocate General Eleanor Sharpston suggests that the Court dismiss France’s appeal.
As regards the failure by the Council to communicate, prior to the adoption of its decision, the new information to PMOI which resulted in that organisation being maintained on the list, Advocate General Sharpston disagrees with the General Court that the Council had ample time between receiving the information from the French Government on 9 June and adopting its decision on 15 July to communicate that information to PMOI, taking into account the internal procedures of the Council.
However, in her view, this should not have prevented the Council from providing the information to PMOI before adopting a decision maintaining it on the list, as required by the Court’s case law. Whether or not issues of urgency arise, it is simply not open to the Council to ride roughshod over a party’s rights of defence.
So as to balance the interests of the Council, PMOI and the other persons on the list who have a right to have that list reviewed every six months, Miss Sharpston suggests that the Council should have adopted a decision as regards the other persons on the list within the timescale required but deferred adopting a decision in relation to PMOI until such time as it had had the opportunity to notify PMOI and consider that organisation’s response. The error made by the Council was in assuming that it had to adopt a single decision dealing simultaneously with all the persons and organisations on the list. This was not the case.
Consequently, Advocate General Sharpston concurs with the conclusion of the General Court that the Council’s decision had been adopted in violation of PMOI’s rights of defence. As this was the sole reason for the annulment of the decision by the General Court, the Advocate General suggests that the Court dismiss the appeal.
Mindful of the fact that the remaining arguments ought to have no bearing on the outcome of the case, Advocate General Sharpston nevertheless considers it important that they be addressed. Failing to do so would, in her opinion, leave France faced with precisely the same uncertainty that led it to appeal in the first place, an uncertainty which may well be shared by other Member States.
As to whether the opening of a judicial inquiry in 2001 and the supplementary charges brought against individuals suspected of being members of PMOI in 2007 constituted a decision by a competent authority, Miss Sharpston first considers that, given that terrorists are unlikely to assist the authorities by establishing themselves in an easily identifiable manner, the requirement that a national decision be taken “in respect of the persons, groups or entities concerned” must be interpreted broadly. As such it is, in her view, not necessary that the national decision name precisely the same persons or organisations as the EU decision. It is sufficient that there exist serious and credible evidence and clues that the persons named are essentially the same.
As to the nature of the national decision, the Advocate General takes the view that a simple decision to initiate investigations is not, of its own, enough. On the other hand, requiring the national decision to be taken by a court would be too strict a requirement. In her opinion there needs to be serious and credible evidence or clues which are strongly suggestive of a terrorist act and significantly more than mere suspicion or hypothesis. Taking this into account, Advocate General Sharpston considers that the opening of a judicial inquiry in 2001, which led to further proceedings in 2003 (under French law known as a mise en examen) would meet this test but that the supplementary charges brought in 2007, which were not subject to a mise en examen, would not. As the two were taken together as a whole by the Council, this leads to the conclusion that the French decisions could not form the basis of the Council’s decision.
Furthermore, the Advocate General agrees with the General Court that no proof was provided that the investigations launched in 2007 against alleged members of PMOI could be said to be directed against PMOI itself.
Finally, as regards the withholding of confidential information from the General Court, Advocate General Sharpston takes no issue with that Court’s finding that the Council’s refusal to communicate the information in question resulted in the General Court being unable to review the lawfulness of the decision. However, given the absence of any specific provisions in that Court’s Rules of Procedure for dealing with information that needs to be communicated to the Court but not to the other party to the case, the Advocate General, nevertheless, does not find France’s position unreasonable. In strict accordance with the General Court’s Rules of Procedure it was not possible for that Court to offer the Council any assurance that the confidential information would not, at some point, have to be communicated to PMOI. As a result Advocate General Sharpston suggests that changes be made to the Rules of Procedure and principles be outlined so as to allow the use of such confidential information where necessary to combat terrorism whilst simultaneously ensuring respect of the rights of defence and the right to effective judicial protection.

1 Case T-284/08 People’s Mojahedin Organization of Iran II (see also Press Release 84/08)
2 Case T-228/02 Organisation des Modjahedines du peuple d’Iran (see also Press Release 97/06) and Case T-256/07 People’s Mojahedin Organization of Iran (see also Press Release 79/08)
3 Council Decision 2008/583/EC of 15 July 2008 implementing Article 2(3) of Regulation (EC) No 2580/2001 on specific restrictive measures directed against certain persons and entities with a view to combating terrorism and repealing Decision 2007/868/EC (OJ 2008 L 188, p. 21).

Link: Add Comment  Judgment in Case C-324/09 L’Oréal and Others v eBay 18/07/2011 0 Comments   Court of Justice of the European Union
Luxembourg, 12 July 2011

The Court provides clarification on the liability of companies operating internet marketplaces for trade mark infringements committed by users
National courts must be able to order those companies to take measures intended not only to bring to an end infringements of intellectual property rights but also to prevent further infringements of that kind
eBay operates a global electronic marketplace on the internet, where individuals and businesses can buy and sell a broad variety of goods and services.
L’Oréal is the owner of a wide range of well-known trade marks. Its products (especially cosmetics and perfumes) are distributed through a closed distribution network, in which authorised distributors are restrained from supplying products to other distributors.
L’Oréal complains that eBay is involved in trade mark infringements committed by users of its website. Moreover, it claims that, by purchasing from paid internet referencing services (such as Google’s AdWords) keywords corresponding to the names of L’Oréal trade marks, eBay directs its users towards goods that infringe trade mark law, which are offered for sale on its website. Furthermore, L’Oréal is of the view that eBay’s efforts to prevent the sale of counterfeit goods on its website are inadequate. L’Oréal has identified various forms of infringement, including, inter alia, the sale and offer for sale, to consumers in the EU, of goods bearing L’Oréal’s trade marks intended, by L’Oréal, for sale in third States (parallel importation).
The High Court (United Kingdom), before which the dispute is pending, has asked the Court of Justice a number of questions concerning the obligations to which a company operating an internet marketplace may be subject in order to prevent trade mark infringements by its users.
The Court states, as a preliminary point, that the proprietor of the trade mark may rely on his exclusive right as against an individual who sells trade-marked goods online only when those sales take place in the context of a commercial activity. That is the case, in particular, if the sales, owing to their volume and frequency, go beyond the realms of a private activity.
The Court rules first of all on commercial activities directed towards the EU by means of online marketplaces such as eBay. It states that the EU trade mark rules apply to offers for sale and advertisements relating to trade-marked goods located in third States as soon as it is clear that those offers for sale and advertisements are targeted at consumers in the EU.
It is for the national courts to assess, on a case-by-case basis, whether there are any relevant factors on the basis of which it may be concluded that an offer for sale or an advertisement, displayed on an online marketplace, is targeted at EU consumers. For example, the national courts will be able to take into account the geographic areas to which the seller is willing to dispatch the product.
Next, the Court holds that the operator of an internet marketplace does not itself ‘use’ trade marks within the meaning of the EU legislation if it provides a service consisting merely in enabling its customers to display on its website, in the course of their commercial activities, signs corresponding to trade marks.
The Court also specifically mentions certain matters concerning the liability of the operator of an online marketplace. Whilst making clear that it is for the national courts to carry out the assessment concerned, the Court considers that the operator plays an active role of such a kind as to give it knowledge of, or control over, the data relating to the offers for sale, when it provides assistance which entails, in particular, optimising the presentation of the online offers for sale or promoting those offers.
When the operator has played an ‘active role’ of that kind, it cannot rely on the exemption from liability which EU law confers, under certain conditions, on online service providers such as operators of internet marketplaces.
Moreover, even in cases in which the operator has not played an active role of that kind, it cannot rely on that exemption from liability if it was aware of facts or circumstances on the basis of which a diligent economic operator should have realised that the online offers for sale were unlawful and, in the event of it being so aware, failed to act promptly to remove the data concerned from its website or to disable access to them.
Finally, the Court rules on the question of injunctions which may be granted against the operator of an online marketplace when it does not decide, on its own initiative, to bring to an end infringements of intellectual property rights and to prevent further such infringements occurring.
Thus, the operator may be ordered to take measures making it easier to identify the sellers who are its customers. In that regard, although it is necessary to respect the protection of personal data, the fact remains that when the perpetrator of the infringement is operating in the course of trade, and not in a private matter, that person must be clearly identifiable.
Consequently, the Court holds that EU law requires the Member States to ensure that the national courts with jurisdiction in relation to the protection of intellectual property rights are able to order the operator to take measures which contribute, not only to bringing to an end infringements of those rights by the users, but also to preventing further infringements of that kind. Those injunctions must be effective, proportionate, and dissuasive and must not create barriers to legitimate trade.

Link: Add Comment  Advocate General’s Opinion in Case C-214/10 KHS AG v Winfried Schulte 11/07/2011 0 Comments   Court of Justice of the European Union
Luxembourg, 7 July 2011

Advocate General Trstenjak takes the view that European Union law does not preclude a limitation of entitlement to annual leave or to an allowance in lieu of leave provided that it is compatible with the objective of recuperation

It is for Member States to establish a limitation period. A limit of 18 months, on expiry of which entitlement to leave or to the allowance in lieu of leave is extinguished, is sufficient

The Working Time Directive1 grants every worker a right to annual leave. According to the case-law of the Court of Justice, this right to annual leave is inviolable even in cases of long-term illness2.
Mr Schulte was employed as a locksmith at KHS and its legal predecessor since April 1964. Under the collective agreement applicable to his contract of employment his entitlement to paid annual leave amounted to 30 days per annum. On 23 January 2002 Mr Schulte suffered a heart attack. He subsequently underwent rehabilitation from which he was discharged as unfit for work. From 1 October 2003 onwards Mr Schulte received, for a limited term, a pension on the ground of full reduction of earning capacity and a disability pension, as he was severely disabled since 2002. KHS and Mr Schulte agreed on 25 August 2008 to terminate his employment with effect from 31 August 2008. On 18 March 2009 Mr Schulte lodged a claim with the Arbeitsgericht Dortmund for payment in lieu of leave for the years 2006 to 2008 in respect of 35 days' leave for each year, amounting to €9 162.30 in total. In its judgment of 20 August 2009 the Arbeitsgericht granted the claim for payment in lieu of the statutory minimum entitlement to leave of 20 days and an additional 5 days on grounds of severe handicap fro the years from 2006 to 2008 amounting to €6 544.50 and dismissed the remainder of the claim.
KHS appealed against that judgment to the referring court, the Landesarbeitsgericht Hamm. It found that the leave entitlement of Mr Schulte for 2006 was extinguished on 3 March 2008 under the applicable collective agreement. As, on health grounds, Mr Schulte not only had a full reduction of earning capacity but was also unfit for work after the carry-over period and until the end of his employment relationship, he could not exercise his right to paid annual leave until the end of his employment relationship, as the Court of Justice held in Schultz-Hoff and Others. The referring court therefore seeks a ruling from the Court of Justice as to whether European Union law3, as interpreted by the Court of Justice in its case-law, allows workers to accumulate entitlement to allowances in lieu of leave over several years, even where a worker – as a result of long-term incapacity for work – was not in a position to avail himself of his right to annual leave, and whether the Member States are allowed to set a time-limit of 18 months for those entitlements.
In today's Opinion Advocate General Verica Trstenjak first makes clear that the case-law of the Court of Justice has established an inviolable right to annual leave even in cases of long-term illness. In her view, this applies also to the entitlement to payment in lieu of annual leave not taken4, which may not be refused on the ground that it cannot be claimed because of a long-term illness. That entitlement, which the entitlement to leave becomes on termination of the employment relationship, ultimately serves the purpose of placing the worker in a position to be compensated for his annual leave financially under comparable conditions to those that would apply if he were still in active employment and received an allowance in lieu of leave.
In the view of Advocate General Trstenjak, however, the accumulation, without any limitation in time, of entitlements to leave or allowances in lieu is not required by EU law, in order to achieve the objective of recuperation essentially sought by the Directive. In that connection the Advocate General emphasised that the purpose of annual leave, which is to recover from the effort and stress of the working year and draw new strength for the rest of the working year from the relaxation and leisure enjoyed while on leave, is not achieved if that leave is not taken until years later. Accumulating entitlement to leave over several years so as to double or even treble the minimum leave allowance does not increase the recuperative effect. Moreover, the disadvantages arising for the employer both from the prolonged absence of the employee and the financial burden of accumulated entitlement to leave or allowances in lieu are potentially liable to encourage the employer, under some circumstances, to terminate as soon as possible the employment of employees who are unfit for work for long periods, in order to avoid such disadvantages. As regards the entitlement to allowances in lieu, the Advocate General points out that an unlimited accumulation could give rise to an erroneous expectation on the part of the employee that he is entitled to an indemnity on termination of his employment relationship rather than allowances in lieu of leave.
As regards the limitation in time of the possibility of exercising entitlements to leave or allowances in lieu already acquired, Advocate General Trstenjak first rules out the full loss of such entitlements. It is precisely in cases of long-term illness of a worker that that worker is unable to prevent the automatic and complete loss of entitlement to leave through lapse of time. As regards the time-limit of 18 months mentioned by the referring court, on expiry of which entitlement to leave or allowances in lieu is extinguished, the Advocate General points out that such a time limit is consistent with the purpose of protection enshrined in the Directive concerning certain aspects of the organisation of working time, as the employee would thus have up to two and a half years to take his minimum leave for a given leave year. At the same time the employer would be secure in the knowledge that there can be no unfettered accumulation of entitlement to leave with the consequent difficulties of organisation of work, and no significant financial burden associated with entitlements to allowances in lieu accumulated over long periods.
Advocate General Trstenjak thus comes to the conclusion that a limitation of the carry-over period to 18 months, on expiry of which the leave entitlement of the employee is lost, is sufficient and thus ultimately capable of enabling the employee actually to exercise his right to annual leave. However, the Advocate General emphasises that the period of 18 months represents a guideline which the Member States should follow as far as possible for the purposes of implementation in their domestic law. In the absence of Union–wide rules the Member States are in fact free to adopt other rules while observing the limits imposed by the Directive. However the Advocate General considers a possible carry-over period of only six months to be insufficient.

1 Directive 2003/88/EC of the European Parliament and of the Council of 4 November 2003 concerning certain aspects of the organisation of working time (OJ 2003 L299, p. 9). The specific entitlement arises from Article 7(1) of Directive 2003/88/EC.
2 Joined Cases C-350/06 and C-520/06 Schultz-Hoff and Others, see Press Release 04/09.
3 In particular, Article 7(1) of the Working Time Directive.
4 Article 7(2) Working Time Directive.

Link: Add Comment  Judgment in Case C-263/09 P Edwin Co. Ltd v OHIM 11/07/2011 0 Comments   Court of Justice of the European Union
Luxembourg, 5 July 2011

The holder of a name is entitled to prevent its use as a Community trade mark where national law so permits
The economic aspects of a right to a name may also be protected

The Community trade mark regulation1 provides that a trade mark may be declared invalid where its use may be prohibited pursuant to an earlier right, in particular a right to a name, as defined by European Union law or national law.
Fiorucci SpA is an Italian company which was set up by the fashion designer Elio Fiorucci in the 1970s. In 1990 it sold the entirety of its ‘creative assets’, including all the trade marks which it owned, to the Japanese company Edwin Co Ltd.
In 1999, on application by Edwin, OHIM registered the word mark ‘ELIO FIORUCCI’ for a series of goods, namely perfumery, leather goods, articles of luggage and clothing. Mr Fiorucci, relying on the trade mark regulation in conjunction with Italian law2, challenged that registration, claiming that in Italy his name enjoyed special protection, under which a well-known personal name can be registered as a trade mark only by, or with the consent of, that person, and that no such consent had been given in this case.
OHIM, however, decided that the Italian law did not apply in this case because the name Elio Fiorucci had acquired renown in the context of the latter’s commercial activity. OHIM therefore allowed the application for registration.
Following the action brought by Mr Fiorucci, the General Court of the European Union annulled3 that decision in 2009 in so far as it contained an error of law in the interpretation of the national law. The General Court confirmed that OHIM may declare a Community trade mark to be invalid, on application by an interested party, if its use can be prohibited pursuant to, in particular, an earlier right to a name protected by national law. It held, however, that OHIM had ruled out, incorrectly, the application of national law in the case of Mr Fiorucci.
Edwin subsequently lodged an appeal before the Court of Justice. The Japanese company claimed that the trade mark regulation refers to the ‘right to a name’ solely as an attribute of personality. On that ground the General Court had not, it argued, applied the trade mark regulation correctly.
In today’s judgment, the Court of Justice interprets the concept of the ‘right to a name’, which may be relied on in an application for a declaration that a trade mark is invalid, within the meaning of the trade mark regulation. It is required to clarify whether that concept refers solely to an attribute of personality or concerns in addition its commercial exploitation.
The Court of Justice finds first of all that the wording and structure of the trade mark regulation do not permit the concept of the ‘right to a name’ to be restricted to an aspect of an attribute of personality. On the contrary, the concept may also cover the commercial exploitation of the name.
The regulation provides for a Community trade mark to be declared invalid where an interested person claims another earlier right, and gives a non-exhaustive list of four examples: besides the right to a name, it cites the right of personal portrayal, copyright and industrial property rights. The economic aspects of some of those rights are protected, both under national laws and under European Union law. There is no reason, therefore, not to afford the same protection to the ‘right to a name’.
The General Court was thus fully entitled not to restrict the protection provided by the trade mark regulation merely to situations where the registration of a Community trade mark conflicts with a right intended to protect a name exclusively as an attribute of the personality of the person concerned. In other words, the right to a name may be relied on not only in order to protect a name as an attribute of personality but also to protect its economic aspects.
The Court of Justice also confirms the jurisdiction of the General Court to review the legality of OHIM’s assessment of the national law relied on. It states that, in the context of an appeal, the Court of Justice has jurisdiction itself to determine whether the General Court, on the basis of the documents and other evidence submitted to it, distorted the wording of the national provisions or of national case-law, or of the academic writings concerning them, and whether the General Court made findings that were manifestly inconsistent with their content or significance.
Consequently, the Court of Justice finds that the General Court was fully entitled, without distorting the national law4, to infer from it that, irrespective of the sector in which that renown was acquired and even where the name of the well-known person has already been registered or used as a trade mark, the proprietor of a well-known name is entitled to prevent the use of that name as a trade mark where he has not given his consent to its registration as a trade mark.

1 Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (OJ 1994 L 11, p. 1), Article 52(2)(a).

2 The Italian Industrial Property Code (Codice della Proprietà Industriale, ‘the CPI’) provides that, if it is well known, a personal name may be registered as a trade mark by, or with the consent of, the proprietor.

3 Case T-165/06 Fiorucci v OHMI – Edwin (Elio Fiorucci)

4 CPI, see footnote 2.

Add Comment  A united Europe is the answer to the crisis 11/07/2011 0 Comments   A united Europe, more solidarity and further integration is the answer to the crisis that Europe faces today, said Polish Prime Minister Donald Tusk during the presentation of the Polish Presidency's programme at the European Parliament (EP) in Strasbourg on 6 July.

The Polish Prime Minister sent a powerful message of optimism and belief in the European project, providing his own country as an example and reminding his audience of the facts of Europe's history. Two decades ago, Poland emerged from behind the Iron Curtain and from serious hardships thanks to European solidarity. Today it is an EU Member State with a strong economy, and 80% of its citizens support the EU project.

Solution to the current crisis: solidarity

Prime Minister Tusk is confident that Europe can survive this crisis, which is relatively trivial compared to what Europeans had to live through during the two World Wars and in the early years of the EU.

Those hardships are now history thanks to European solidarity, which ought to be the solution to the crisis we face today.

"Solidarity", said Prime Minister Tusk, "does not mean giving out alms, but working together for the common interest. Somebody has to give a little more to help those in need, so that once they are back on their feet, they in turn can do the giving."

… and further integration

Another solution to the current situation is further European integration. The Prime Minister asked whether it was worth abandoning all that is at the heart of Europe, having functioned smoothly for decades, because of one financial crisis.

This becomes all the more apparent when one considers that the reasons for that crisis do not lie in "the united Europe, its institutions, its budget, or its objectives".

"The best thing that Europeans have ever done is to unite their continent", stressed the Prime Minister; however, "nationalism, protectionism and state-ism have always resulted in disaster."

In addition, he says Europeans too often forget that they live in a society where fundamental and human rights enjoy the highest level of protection in the world. While they question the need for the EU, millions of people outside its borders would love to live in the political, social and economic circumstances that Europe has to offer.

Maintaining the free movement of persons

The Prime Minister dismissed the re-establishment of internal border controls as a solution to the current immigration problems. This amounts to "looking for answers in the wrong place". Instead, he suggested, the EU needs to strengthen and increase the protection of its external borders.

Presidency priorities

- A Secure Europe (secure and stable public finances, military security, stable borders and internal security, security of resources and food supply);

- Further development of the internal market, focusing in particular on the dismantling of internal barriers;

- A Europe benefiting from Openness (further enlargement is another way of enhancing Europe's internal security).

The Prime Minister said that, while he understands the limited time and powers of the EU Council Presidency, he is sure Poland can contribute by "injecting Polish enthusiasm and optimism", which should help to overcome the crisis.

Link: Add Comment  Judgment in Case C-271/10 Vereniging van Educatieve en Wetenschappelijke Auteurs (VEWA) v Belgische Staat 01/07/2011 0 Comments   Court of Justice of the European Union
Luxembourg, 30 June 2011

The remuneration payable to authors in the event of public lending cannot be calculated exclusively according to the number of borrowers

The amount of remuneration should also take account of the number of works made available to the public, so that large public lending establishments pay a greater amount of remuneration than smaller establishments

According to the directive on rental right and lending right and on certain rights related to copyright in the field of intellectual property(1), authors have an exclusive right to authorise or prohibit the rental and lending of originals and copies of copyright works. However, as regards more particularly public lending, the Member States may derogate from that exclusive right, provided that at least authors obtain remuneration for such lending.

VEWA is a Belgian copyright management society. On 7 July 2004, VEWA brought an action for annulment before the Raad van State (Belgian Council of State) against a royal decree transposing the directive.

VEWA submits in particular that that royal decree, by fixing a flat-rate remuneration of €1 per adult per year and 50 cents per child per year registered with the lending institutions, as long as that person has borrowed once during the reference period, infringes the provisions of the directive which require that ‘equitable remuneration’ be paid for a loan or a rental.

In that context, the Raad van State decided to make a reference for a preliminary ruling to the Court of Justice. It asks essentially whether the directive precludes a national system under which the remuneration payable to authors in the event of public lending is calculated exclusively in accordance with the number of borrowers registered with public establishments, in particular libraries, on the basis of a flat-rate sum fixed per borrower per year.

The Court points out that the remuneration must enable authors to receive an adequate income. Its amount cannot therefore be purely symbolic.

As regards, more specifically, the criteria for determining the amount of the remuneration payable to authors in the event of public lending, it is for the Member States alone to determine, within their own territory, what are the most relevant criteria. In that connection, a wide margin of discretion is reserved to the Member States. The latter may determine the amount of the remuneration payable to authors in the event of public lending in accordance with their own cultural promotion objectives.

However, given that remuneration constitutes consideration for the harm caused to authors by reason of the use of their works without their authorisation, the determination of the amount of that remuneration cannot be completely dissociated from the elements which constitute that harm. As that harm is the result of public lending, that is to say, the making available of protected works by establishments accessible to the public, the amount of the remuneration payable should take account of the extent to which those works are made available.

Thus, the higher the number of protected works made available by a public lending establishment, the greater will be the prejudice to copyright. It follows that the amount of remuneration to be paid by such an establishment should take account of the number of works made available to the public and, consequently, that large public lending establishments should pay a greater level of remuneration than smaller establishments.

Furthermore, the relevant public, namely the number of borrowers registered with a lending establishment, is also equally relevant. The greater the number of persons having access to the protected works, the greater will be the prejudice to authors’ rights. It follows that the amount of remuneration to be paid to authors should be determined by also taking into account the number of borrowers registered with that establishment.

In the present case, it is common ground that the system established by the royal decree takes into account the number of borrowers registered with public lending establishments, but not the number of works made available to the public. Such a taking into account does not therefore have sufficient regard for the extent of the harm suffered by authors, or for the principle that those authors must receive remuneration that is equivalent to an adequate income.

Moreover, the royal decree provides that, where a person is registered with a number of establishments, the remuneration is payable only once in respect of that person. In that connection, VEWA submitted that 80% of the establishments in the French Community in Belgium declare that a large number of their readers are also registered with other lending establishments and, consequently, that those readers are not taken into account for payment of the remuneration of the author concerned.

In those circumstances, that system may have the result that many establishments are, in effect, almost exempted from the obligation to pay any remuneration. Such a de facto exemption is, however, at variance with the directive, as interpreted by the Court, according to which only a limited number of categories of establishments potentially required to pay remuneration are capable of being exempt from that payment.

1 Council Directive 92/100/EEC of 19 November 1992 on rental right and lending right and on certain rights related to copyright in the field of intellectual property (OJ 1992 L 346, p. 61), codified by Directive 2006/115/EC of the European Parliament and of the Council of 12 December 2006 on rental right and lending right and on certain rights related to copyright in the field of intellectual property (OJ 2006 L 376, p. 28).


Leave a Reply.


    Write something about yourself. No need to be fancy, just an overview.


    April 2013