1980 Rome Convention – Commission contract for the carriage of goods

Judgment

C-305/13

23.10.2014

Parties

Jurisdiction

Formation

Judge Rapporteur

Advocate General

Subject-matter

Reference for a preliminary ruling

Haeger & Schmidt GmbH

v.

Mutuelles du Mans assurances and others

CJEU

3rd Ch.

C.Toader

/

1980 Rome Convention –

Transport contract

Key-words

Rome Convention on the law applicable to contractual obligations — Article 4(1), (2), (4) and (5) — Law applicable by default — Commission contract for the carriage of goods — Contract for the carriage of goods

Summary

A commission contract for the carriage of goods is a contract for the carriage of goods within the meaning of Article 4 (4) of the Rome Convention solely when the main purpose of the contract consists in the actual transport of the goods concerned, which it is for the referring court to verify.

Article 4(4) of the Convention must be interpreted as meaning that, where the law applicable to a contract for the carriage of goods cannot be fixed under the special presumption laid down by this provision, it must be determined in accordance with the general rule laid down in Article 4(1), by identifying the country with which the contract is most closely connected.

In the case the agreement is not a contract for the carriage of goods and Article 4 (2) is therefore applicable, the latter must be interpreted as meaning that, where it is argued that a contract has a closer connection with a country other than the country the law of which is designated by the presumption laid down therein, the national court must compare the connections existing between that contract and, on the one hand, the country whose law is designated by the presumption and, on the other, the other country concerned. In so doing, the national court must take account of the overall circumstances, including the existence of other contracts connected with the contract in question.

Noteworthy

 Judgment to be approved, except the excessive role left to the derogatory rule laid down in Article 4 (5) of the Rome Convention.

Reference medicinal product – Directive 2001/83/EC

Judgment

C-104/13

23.10.2014

Parties

Jurisdiction

Formation

Judge Rapporteur

Advocate General

Subject-matter

Appeal

Olainfarm AS

v.

Ministry of Health of the Republic of Latvia

CJEU

5th Ch.

D. Svaby

N. Wahl

Directive 2001/83/EC

Key-words

Directive 2001/83/EC — Medicinal products for human use — Marketing authorisation — Article 8(3)(i) — Requirement to attach to the application for authorisation the results of pharmaceutical pre-clinical tests and clinical trials — Derogations relating to pre-clinical tests and clinical trials — Article 10a — Medicinal products of which the active substances have been in well-established medicinal use within the European Union for at least 10 years — Whether it is possible to use a medicinal product for which authorisation has been granted on the basis of the derogation provided for in Article 10a as a reference medicinal product for the purpose of obtaining a marketing authorisation for a generic product Article 10 — Whether the holder of a marketing authorisation for a reference medicinal product has an individual right to oppose the marketing authorisation of a generic of the reference product

Summary

The concept of a ‘reference medicinal product’ within the meaning of Article 10(2)(a) of Directive 2001/83 must be construed as encompassing a medicinal product for which the MA was granted on the basis of Article 10a of the directive. Article 10a of Directive 2001/83  has the effect of exempting the applicant from one of the requirements laid down in Article 8 of the directive for obtaining a MA under Article 6 thereof. Accordingly, a medicinal product for which the MA was granted pursuant to Article 10a of the directive, the applicant for that authorisation having availed himself of the derogation under that provision and also having fulfilled all the other requirements laid down in Article 8 of the directive, must be regarded as a medicinal product authorised under Article 6 of the directive, in accordance with the provision of Article 8 thereof.Directive 2001/83 does not contain any express provision to the effect that a judicial remedy is available to the holder of a MA granted for an original medicinal product to challenge the decision of the competent authority which granted, pursuant to Article 10 of the directive, a MA for a generic medicinal product for which the original product served as the reference product.It should be observed that Article 10 of Directive 2001/83 lays down the conditions under which the holder of a MA for a medicinal product is required to accept that the manufacturer of another medicinal product is entitled to refer to the results of pre-clinical tests and clinical trials contained in the dossier relating to the application for the MA for the former product, rather than perform those tests or trials himself, for the purpose of obtaining a MA for the other medicinal product. It is apparent that that provision confers a concomitant right on the holder of the MA for the former medicinal product to demand that the rights attaching to him by virtue of those conditions are observed. It should therefore be recognised that the holder of a MA for a medicinal product used as a reference product in an application for a MA under Article 10 of Directive 2001/83 is, by virtue of that provision, read in conjunction with Article 47 of the Charter, entitled to judicial protection in so far as concerns respect for his rights.

Noteworthy

Brussels I Regulation – EU competition law – damages claim

Judgment

C-302/13

23.10.2014

Parties

Jurisdiction

Formation

Judge Rapporteur

Advocate General

Subject-matter

Appeal

Fly LAL-Lithuanian Airlines AS, in liquidation

CJEU

Third Ch.

C. Toader

J. Kokott

Brussels Regulation

Key-words

Regulation (EC) No 44/2001 —  Article 1(1) — Scope — Civil and commercial matters —  Claim for compensation in respect of damage resulting from alleged infringements of European Union competition law — Reductions in airport charges — Article 22(2) — Exclusive jurisdiction —  Dispute in proceedings concerning companies or other legal persons or associations of natural or legal persons — Decision granting reductions — Article 31 — Request for recognition and enforcement of a judgment ordering provisional or protective measures — Article 34(1) — Grounds for refusal of recognition — Public policy in the State in which recognition is sought)

Summary

Article 1(1) of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters must be interpreted as meaning that an action, seeking legal redress for damage resulting from alleged infringements of European Union competition law, comes under the notion of “civil and commercial matters” within the meaning of that provision and, therefore, falls within the scope of that regulation. In this respect, it is of no import that the defendant is subject, as regards the determination of the rates of airport charges and reduction in those charges, to generally applicable statutory provisions of a Member State.

Article 22(2) of Regulation No 44/2001 must be interpreted as meaning that such an action does not constitute proceedings which have as their object the validity of the decisions of organs of companies within the meaning of that provision.

Article 34(1) of Regulation No 44/2001 must be interpreted as meaning that neither the detailed rules for determining the amount of the sums which are the subject of the provisional and protective measures granted by a judgment in respect of which recognition and enforcement are requested, in the case where it is possible to follow the line of reasoning which led to the determination of the amount of those sums, and even where legal remedies were available which were used to challenge such methods of calculation, nor the mere invocation of serious economic consequences constitute grounds establishing the infringement of public policy of the Member State in which recognition is sought which would permit the refusal of recognition and enforcement in that Member State of such a judgment given in another Member State.

Noteworthy

As far as I know, the CJEU has acknowledged for the first time that lack of reasoning may be grounds for refusal of recognition of a judgment other than a default judgment, in contrast to the situations at hand in the cases Krombach (C-79/98), ASML Netherlands BV (C-283/05) and Trade Agency Ltd.

As a result, the right to a fair trial is increasingly susceptible to undermine the efficiency of the mechanism of recognition and enforcement laid down by the Brussels Regulation.

Customs Code – Right to effective judicial protection

Judgment

C-437/13

23.10.2014

Parties

Jurisdiction

Formation

Judge Rapporteur

Advocate General

Subject-matter

Reference for a reliminary ruling

Unitrading Ltd

CJEU

6th Ch.

M. Berger

/

Community Customs code

Right to effective judicial protection

Key-words

Recovery of import duties – Origin of goods – Means of proof – Charter of Fundamental Rights – Article 47 – Rights of the defence – Right to effective judicial protection – Procedural autonomy of the Member States

Summary

Article 47 of the Charter of Fundamental Rights of the EU must be interpreted as not precluding proof of origin of imported goods adduced by the customs authorities on the basis of national procedural rules resting on the results of an examination carried out by a third party, with regard to which such third party refuses to disclose further information either to the customs authorities or to the customs declarant, as a result of which it is made difficult or impossible to verify or disprove the correctness of the conclusions reached, under the following conditions:

– it can validly be challenged by the party concerned, in particular by arguing that such evidence may only constitute indirect proof of the facts alleged and by putting forward further evidence to support his assertions;

– the courts seized in turn in the main proceedings are free to assess the relevance of the evidence submitted;

– and the principles of effectiveness and equivalence are upheld in these respects.

Noteworthy

The CJEU is not fully at ease with the interaction between right to effective judicial protection and the limits of procedural autonomy.

Cohesion Fund – Reduction of financial assistance

Judgment

C-429/13

22.10.2014

Parties

Jurisdiction

Formation

Judge Rapporteur

Advocate General

Subject-matter

Appeal

Kingdom of Spain

v.

European Commission

CJEU

6th Ch.

F. Biltgen

/

Cohesion Fund

Key-words

Reduction of financial assistance – Failure to comply with the time-limit

Summary

Setting aside of the Judgment of the General Court and annulment of the Commission Decision on the ground that the EU Commission did not comply with the six-month time limit required under Article 100 (5) of Regulation no 1083/2006.

Noteworthy

/

Freedom to provide services – Taxation – Winnings from casinos

Judgment

Joint cases
C-344/13
and C-367/13

22.10.2014

Parties

Jurisdiction

Formation

Judge Rapporteur

Advocate General

Subject-matter

Reference for a preliminary ruling

Cristiano Blanco e.a.

v.

Agenzia delle Entrate – Direzione Provinciale I di Roma – Ufficio Controlli

CJEU

3rd Ch.

C. Toader

/

Freedom to provide services

Key-words

Freedom to provide services — Restrictions — Tax legislation — Income from winnings from games of chance — Difference in taxation between winnings obtained abroad and those from national casinos

Summary

Articles 56 and 52 TFEU preclude legislation of a Member State which subjects winnings from games of chance obtained in casinos in other Member States to income tax and exempts similar income from that tax if it is obtained from casinos in its national territory. A discriminatory restriction is compatible with EU law only if it falls under an express derogation, such as Article 52 TFEU to which Article 62 TFEU refers, and which is intended to safeguard public policy, public security and public health. Excluding the benefit of a tax exemption in a general manner would appear to be a disproportionate approach, to combatting money laundering, other methods being available to the Member States in this respect, such as Directive 2005/60 which is intended to combat money laundering and which applies to casinos.

Finally, taxation by a Member State of winnings from casinos in other Member States and the exemption of such winnings from casinos situated on its territory are not a suitable and coherent means of ensuring the attainment of the objective of combatting compulsive gambling, as such an exemption is in fact likely to encourage consumers to participate in games of chance which allow them to benefit from such an exemption.

Noteworthy

Classical judgment on discriminatory restrictions to freedom of circulation – tests of appropriateness and proportionality clearly and carefully operated.

State aid – UK – Pension fund

Judgment

C-620/13 P

22.10.2014

Parties

Jurisdiction

Formation

Judge Rapporteur

Advocate General

Subject-matter

Appeal

British Telecommunications plc

v.

European Commission

CJEU

2nd Ch.

R. Silva de Lapuerta

/

State aid

Key-words

State aid – Exemption of a pension fund from the obligation to pay a contribution to a pension fund in respect of certain employees – Selective nature of the measure

Summary

Dismissal of the appeal – As a result, confirmation of the decision of the EU Commission identifying a State aid – Failure of the attempts of the applicant to make a connection between the exemption and certain additional pension liabilities of the pension fund.

Noteworthy

Judgement presenting no interest beyond the limits of the case at hand.