31 juil. 2011

ECtHR: freedom of expression allows a journalist to say that a wine is “shit”, Uj, 23954/10

Hungarian Supreme Court made a reprimand to journalist Péter Uj for characterizing wine produced by T.Zrt  as “shit”, i.e defamation violating the right to good reputation (§§ 8-9). He wrote: “hundreds of thousands of Hungarians drink this shit with pride, even devotion” (§ 6), and the ECtHR understood him.

The ECtHR concluded that this reprimand had been unnecessary in a democratic society, that there was no pressing social need (§ 19) to sanction the wine expert. The judges focused on the purpose of the word “shit” that was not to insult but to serve merely as a stylistic decoration (§ 20), since calling a low quality wine “shit” is a common practice (§ 24). In this context, “shit” is not defamation but a value judgment raising awareness about the disadvantages of the economic policy (§ 23).

30 juil. 2011

ECJ gives access to internal litigation debates of the European Commission, Sweden v Commission, C-506/08 P

The ECJ annulled the judgment of the EU General Court, and de facto gave MyTravel Group plc access to the European Commission’s internal litigation documents on accusing this company of a cartel agreement with its competitor First Choice plc. It is remarkable that it was the Government of Sweden who attacked the judgment refusing the access before the ECJ. MyTravel was also supported by Denmark and Netherlands, and opposed by France, Germany and the UK.

The EU General Court, the Commission and the 3 States tried to protect the internal litigation documents in saying that a disclosure of a conflict between the Commission’s Legal Service and its DG Competition would put the Commission in a difficult position (§ 36), that it was an administrative procedure and not legislative (§ 62), that there is a need to preserve a “space for reflection” within the institution as it follows from the preparatory papers for Regulation No 1049/2001 (§ 63), that there would be a risk of facing divergent previous internal opinions raised against the EU institution in its future administrative or court proceedings (§ 65).

The ECJ replied that the right to access is an expression of Article 1(2) of the EU Treaty providing that decisions must be as open as possible, and as close as possible to the citizens (which includes companies) (§ 72). The right of access to documents covers all possible documents held by an institution in all areas of Union activity (§ 88). It is even more so after the end of proceedings (§§ 82 and 89).

29 juil. 2011

ECJ extends the applicability of EU law to foreign Internet intentions, L’Oréal v eBay, C-324/09

While analyzing applicability of EU law, we are used to structure the deduction according to location, time, person, and matter.  This time, the Grand Chamber of the ECJ made a new development: in order to say whether EU trademark law is applicable to Internet trade, one must answer whether the seller intended to attract EU consumers (§§ 61-62).

eBay International AG was attacked by L’Oréal SA for providing online market place for the goods covered with the trademarks of the latter (including advertising them through Google).  Those goods were sold by sellers established outside the EU, and were not forwarded to the EU territory. The UK, Italy, Portugal, Poland and, of course, the Commission supported L’Oréal.

24 juil. 2011

ECtHR: prohibition to build minarets in Switzerland does not decrease the prestige of Islam

On 29/11/2009 a Suisse referendum amended the Constitution and prohibited Muslims to build minarets. On 28/06/2011 the ECtHR declared the first counter-attack of Muslims inadmissible in case Ligue des musulmans de Suisse et al. c. Suisse, 66274/09.

According to the 7 judges, the prohibition to build minarets doesn’t decrease the prestige of Islam and its religious organizations, doesn’t motivate Muslims to abandon their faith and leave the community organizations, and therefore the Suisse Muslim League does not have a standing to send this kind of complaints to Strasbourg (En droit, § 13).

However since this affirmation is based on the presumption “Muslim organisations don’t say this”, they can re-submit this application even today.

15 juil. 2011

Destruction of trademark case law, TDI 2, T-318/09

Audi AG and Volkswagen AG tried to register their word mark TDI once again. In 2003 they lost TDI proceedings T-16/02, since the judges considered that TDI is a descriptive term meaning “turbo direct injection” or “turbo diesel injection” (§§ 6 & 18).

This time they brought the amulet Bild digital, C-43/08, and argued that similar signs CDI and HDI were registered (§ 12). Last week the reply of the EU General Court was: “the applicants cannot validly rely on the registration of the other signs as Community trade marks for the purpose of demonstrating that the contested decision is unlawful” (§ 24).

Of course, we must continue using and comparing trademark case law in this kind of litigation, but the state of case law becomes even more indeterminate.

6 juil. 2011

ECtHR: absence of re-establishment of access to proofs after resigning from CEO does not mean that the trial was unfair, Messier, 25041/07

Mr. Jean-Marie Messier, former CEO of Vivendi Universal and symbol of French capitalism, failed to convince the ECtHR that there was an unfair trial in his proceedings before the French Commission of Stake Exchange Operations, the Sanctions Commission of the Financial Markets Authority, etc. He was fined with € 500 000 for presenting “inexact, imprecise and insincere” (too optimistic) information on the financial health of the group to its shareholders and other market actors in 2000 – 2002 (§§ 7, 20), while being next door to bankruptcy.

The CEO resigned and therefore lost the access to the documents of the company, which amounted from his perspective to unfair trial, since he was unable to find the documents discharging him, and to access to the documents consisting of tens of thousands pages taken by authorities (§§ 36-38).

The ECtHR replied that:
  1. The documents he had not gotten access to had been impertinent for the case (§§ 58.2, 59).
  2. The former CEO didn’t explain to the ECtHR how the missing documents could contribute to his defense (§ 61.1).
  3. The former CEO could invite the authors of the missing documents as witnesses. This would help him better than the very documents (§ 61.2).

5 juil. 2011

ECJ refuses to ban monopoly in the betting on horseracing market, Zeturf, C-212/08

Contrary to the expectations of the Maltese betting on horseracing company Zeturf Ltd, the ECJ refused to declare that the French monopoly at this market (held by Pari Mutuel Urbain) is disproportional or serves the interest of excluding competitors rather than protecting the society from possible money laundering through betting or from addiction.

The French Government maintained that the monopoly is necessary to prevent too high addiction, to avoid money laundering, to comply with moral standards. Zeturf argued that the French monopoly advertises betting and, thus, increases addiction (§§ 65, 66), that this monopoly hides money laundering (§ 49). The judges decided to leave the “real reasons” (§§ 47, 62, 69) and proportionality (§§ 43, 70, 71) questions to the national courts. Obviously, this increases the national discretion for introducing this kind of monopolies.

It is remarkable that the moral standards argument did not stop the ECJ from opening the profession of notary to foreigner nationals, and from allowing regulated professions (accountants, and attorneys?) to contact potential clients with commercial proposals.