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Pourvoi c/ Cour d'appel de Colmar, 2e chambre civile, section A, 27 mai 2016

Pourvoi c/ Cour d'appel de Paris, pôle 5, chambre 5-7, 16 juin 2016

My colleague Adriani Dori (MPI Luxembourg) kindly reminded me today: EU Regulation 655/2014 applies from 18 January 2017.

There is as yet no EU harmonisation on amino acids, in so far as they have a nutritional or physiological effect and are added to foods or used in the manufacture of foods. A range of EU foodlaws therefore do not apply to national action vis-a-vis amino acids, in particular Regulation 1925/2006 – the food supplements Regulation. In the absence of specific EU law rules regarding prohibition or restriction of the use of other substances or ingredients containing those ‘other substances’, relevant national rules may apply ‘without prejudice to the provisions of the Treaty’.

In C-282/15 Queisser Pharma v Germany, moreover there were no transboundary elements: Articles 34-36 TFEU therefore do not in principle apply.

No doubt food law experts may tell us whether these findings are in any way unusual, however my impression is that the Court of Justice in this judgment stretches the impact of the ‘general principles of EU food law’ as included in Regulation  178/2002. Indeed the Court refers in particular to Article 1(2)’s statement that the Regulation lays down the general principles governing food and feed in general, and food and feed safety in particular, at EU and national level (my emphasis). Article 7 of the Regulation is of particular relevance here. That Article gives a definition of the precautionary principle, and consequential constraints on how far Member States may go in banning foodstuffs, as noted in the absence of EU standards and even if there is no cross-border impact.

Article 7 Precautionary principle

1. In specific circumstances where, following an assessment of available information, the possibility of harmful effects on health is identified but scientific uncertainty persists, provisional risk management measures necessary to ensure the high level of health protection chosen in the Community may be adopted, pending further scientific information for a more comprehensive risk assessment.

2. Measures adopted on the basis of paragraph 1 shall be proportionate and no more restrictive of trade than is required to achieve the high level of health protection chosen in the Community, regard being had to technical and economic feasibility and other factors regarded as legitimate in the matter under consideration. The measures shall be reviewed within a reasonable period of time, depending on the nature of the risk to life or health identified and the type of scientific information needed to clarify the scientific uncertainty and to conduct a more comprehensive risk assessment.

Germany on this point is probably found wanting (‘probably’, because final judgment on the extent of German risk assessment is left to the national court) – reference is best made to the judgment for the Court’s reasoning. It is clear to me that the way in which the Regulation defines precaution, curtails the Member States considerably. Further ammunition against the often heard, and wrong, accusation that the EU is trigger happy to ban substances and processes in the face of uncertainty.

Geert.

 

En application de la Convention franco-marocaine du 5 octobre 1957, « le juge vérifie si la décision dont l’exequatur est demandé est, d’après la loi du pays où elle a été rendue, passée en force de chose jugée et susceptible d’exécution ».

en lire plus

It is my pleasure to give notice of a recently published monograph of my colleague Dr. Javier Maseda Rodríguez (Associate Professor of private international law at the University of Santiago de Compostela, Spain), entitled

La ley aplicable a la titularidad original de los derechos de propiedad intelectual sobre las obras creadas en el marco de una relación laboral (The law applicable to the initial ownership of intellectual property rights of works created in the context of an employment relationship).

This monograph aims to identify the applicable law to the initial ownership of intellectual property rights to works created in the context of an employment relationship. The topic is indeed a classic one for private international law scholars with an interest in intellectual property. Still, it remains a hot issue, as shown in a book that compiles with a comparative intent normative, practical and doctrinal positions on the subject, explaining at the same time the reception in Spanish law of regulations alien to the Spanish tradition – such as Art. 11 (2) English Copyright, Designs and Patent Act 1988, Art. 7 Dutch IPL or the works made for hire from sect. 201.b, par. 17, American Copyright Act 1976.

The research undertaken by Dr. Maseda Rodríguez evinces the controversy raised by the ascription of the initial ownership of intellectual property rights to a specific work, in light of the different responses given by legal systems –and this, in spite of the rapprochement among systems thanks to rules like the Berne Convention for the Protection of Literary and Artistic Works of September 9, 1886-, both in general and with respect to works created in the context of an employment relationship. Hence the comparative law analysis, providing support for the different viewpoints as to the applicable law: on the one hand, the continental systems of droit d’auteur, which identify the employee as the author and therefore as original holder of economic and moral rights (art. 1, 5.1, 51 y 97.4 Spanish LPI). On the other, the copyright systems, which consider the entrepreneur/employer, who facilitates the creation by investing in the product, as author, and therefore as original holder of all rights, economic and moral (art. 11 (2) English Copyright, Designs and Patent Act 1988, the art. 7 Dutch IPL or works made for hire of the sect. 201.b, par. 17, American Copyright Act 1976).

The absence of any material notion of author facilitates to address the question of the original ownership of intellectual property rights from a pure conflict-of-law rules perspective. Dr. Maseda approaches the issue from two points of view -employment and intellectual property-, regulated by different applicable rules –the lex laboris and the law regulating intellectual property rights. The pros and cons of both solutions are discussed; so is their respective implementation, which is explained decoupling moral and economic intellectual property rights, as their different nature result in different problems.

Regarding the implementation of the lex laboris to the original ownership of economic intellectual property rights the following three issues are tackled with in the monograph: first, the reception of copyright rules into Spanish law; secondly, the problems generated by the availability of economic intellectual property rights by its original owner; thirdly, the restrictions to the lex laboris (protection of the salaried creator: limits to party autonomy, and the recourse to the lois de police or the international public policy regarding the original ownership of economic intellectual property rights).

Concerning the implementation of the lex loci protectionis to the original ownership of moral rights, the author examines the case of claims for the Spanish territory and for a foreign country. From this point of departure he addresses the reception of foreign norms regulating authorship and/or the initial ownership of moral intellectual property rights in favor of the employer; and the compatibility with the Spanish public policy of the waiver of moral rights in favor of the employer (for instance through by way of a clause in the employment contract).

Finally, the coexistence of both regulations –the lex laboris and the lex loci protectionis– is also addressed, with a special emphasis on the conciliation of the conflicting interests between employer and employee.

Dr. Javier Maseda Rodríguez’s monograph is the sixteenth volume within the series De conflictu legum, a compilation of monographs especially devoted to private international law with a specific focus on civil procedural international law, conflict of law rules and international commercial law.

A quick note on second-hand goods and VAT. For my review of Bot AG’s Opinion in C-471/15 Sjelle Autogenbrug, see here. The Court held yesterday and defined (at 32) second-hand goods essentially as follows: in order to be characterised as ‘second-hand goods’, it is only necessary that the used property has maintained the functionalities it possessed when new, and that it may, therefore, be reused as it is or after repair.

The Court does not refer to EU waste law yet the impact on that area of EU law is clear.

Geert.

Handbook of EU Waste Law, second ed. 2016, Chapter 1.

The Gibraltar Betting and Gaming Association Limited et The Queen
Libre prestation des services
L’avocat général Szpunar considère que le Royaume-Uni et Gibraltar forment un seul État membre aux fins de la libre prestation des services

Regulation (EU) n. 655/2014 establishing a European Account Preservation Order (EAPO) procedure to facilitate cross-border debt recovery in civil and commercial matters is applicable as of today, 18 January 2017. The relevant section of the European e-Justice Portal has been updated: the application forms can be completed online.

È applicabile da oggi, 18 gennaio 2017, il regolamento (UE) n. 655/2014 che istituisce una procedura per l’ordinanza europea di sequestro conservativo (OESC) su conti bancari al fine di facilitare il recupero transfrontaliero dei crediti in materia civile e commerciale. La sezione del Portale europeo della giustizia elettronica relativa al regolamento è stata aggiornata: i relativi moduli possono essere completati online.

Banque - Instrument de paiement - Utilisation frauduleuse
par un tiers

Toshiba / Commission
Concurrence
La Cour confirme l’amende de 82 millions d’euros infligée solidairement à Toshiba et à Panasonic/MTPD pour leur participation à l’entente des tubes pour téléviseurs

In her long-awaited speech on what Brexit actually means for the future application of the acquis communautaire in the United Kingdom, British Prime Minister Theresa May, on 17 January, 2017, stressed that the objective of legal certainty is crucial. She further elaborated:

“We will provide certainty wherever we can. We are about to enter a negotiation. That means there will be give and take. There will have to be compromises. It will require imagination on both sides. And not everybody will be able to know everything at every stage. But I recognise how important it is to provide business, the public sector, and everybody with as much certainty as possible as we move through the process. So where we can offer that certainty, we will do so. […] And it is why, as we repeal the European Communities Act, we will convert the ‘acquis’ – the body of existing EU law – into British law. This will give the country maximum certainty as we leave the EU. The same rules and laws will apply on the day after Brexit as they did before. And it will be for the British Parliament to decide on any changes to that law after full scrutiny and proper Parliamentary debate.”

At the same time, May promised that “we will take back control of our laws and bring an end to the jurisdiction of the European Court of Justice in Britain.”

(The full text of the speech is available here.)

This unilateral approach seems to imply that the EU Regulations on Private International Law shall apply as part of the anglicized “acquis” even after the Brexit becomes effective. This would be rather easy to achieve for the Rome I Regulation. In addition, a British version of Rome II could replace the Private International Law (Miscellaneous Provisions) Act of 1995, except for defamation cases and other exemptions from Rome II’s scope. At the end of the day, nothing would change very much for choice of law in British courts, apart from the fact that the Court of Justice of the European Union could no longer rule on British requests for a preliminary reference. Transplanting Brussels Ibis and other EU procedural instruments into autonomous British law would be more difficult, however. Of course, the UK is free to unilaterally extend the liberal Brussels regime on recognition and enforcement to judgments passed by continental courts even after Brexit. It is hard to imagine, though, that the remaining EU Member States would voluntarily reciprocate this favour by treating the UK as a de facto Member State of the Brussels Ibis Regulation. Merely applying the same procedural rules in substance would not suffice for remaining in the Brussels Ibis camp if the UK, at the same time, rejects the jurisdiction of the CJEU (which it will certainly do, according to May). Thus, the only viable solution to preserve the procedural acquis seems to consist in the UK either becoming a Member State of the Lugano Convention of 2007 or in concluding a special parallel agreement similar to that already existing between Denmark and the EU (minus the possibility of a preliminary reference, of course). Since only the latter option would allow British courts to apply the innovations brought by the Brussels I recast compared with the former Brussels and the current Lugano regime, it should clearly be the preferred strategy from the UK point of view – but it cannot be achieved unilaterally by the British legislature.