26 sept. 2011

EU General Court: USSR coat of arms may not be registered as a trademark, Couture Tech Ltd., T-232/10

UK company Couture Tech Ltd. tried to register Soviet coat of arms as a trademark. The EU General Court refused because this symbol is prohibited in Hungary, Latvia and Czech Republic, and therefore is contrary to public policy and morality (§ 60).

Couture Tech argued that, unlike the swastika, the political connotation of the USSR coat of arms has been diffused and transformed into a provocative one, connected with the concept of the avant-garde, so that the trademark applied for had acquired “a new distinctiveness” (§ 46).

The EU General Court replied that it is still perceived as a political symbol (§ 64).

25 sept. 2011

“Incontrovertible and direct proof” standard prevents oil company YUKOS from getting the desired victory, YUKOS, 14902/04

Russian oil company YUKOS led by businessman and politician Mikhail Khodorkovsky bankrupted in 2007 due to the fiscal debt of € 16 billion for 2000-2003. The Parliamentary Assembly of the Council of Europe fully supported YUKOS and declared this persecution political. However on 20/09/2011 YUKOS failed to prove the same before the European Court of Human Rights.

YUKOS argued that the circumstances of the tax assessment and enforcement, the prosecution of Mr Khodorkovsky and other owners and officials of the company, as well as the statements of the highest State officials show the intention of the Russian Government to destroy the company and to take control of its assets (Article 18 of the Convention, § 661).

The ECHR recognized a violation in the speed with which the Russian courts had conducted the tax assessment for 2000, and in defining the penalties. However the position of YUKOS concerning Article 18 was destroyed in 2 steps:
  1. Article 18 (principle prohibiting application of restrictive measures for purposes other than the public ones) is applicable only where the restrictions are permitted under the Convention. In this manner the Court cut off the violations where the restrictions had not been permitted.
  2. The Court applied the “incontrovertible and direct proof” standard. The statement of the highest State officials do not meet this standard – especially taken in their respective context – for the purpose of proving that the aim of Russian authorities was to destroy the company for political reasons (§ 665).
This result was foreseeable after the judgment in case Khodorkovsky. The same YUKOS arguments could have more chances under the classic Article 6(1) on fair and impartial trial.

24 sept. 2011

Transfer of responsibility from mother to daughter company, Koninklijke Grolsch, T-234/07

The EU General Court annulled the anti-competitive agreement fine of € 31 658 000 imposed on Koninklijke Grolsch NV, since it was not directly involved in the agreement with other major Dutch beer producers Heineken, InBev, and Bavaria. It was its filial Grolsche Bierbrouwerij Nederland.

Contrary to the reply of Koninklijke Grolsch to the European Commission’s communication (§ 45), individuals P.P.S., R.S., H.O.B., P.M., K.H., L.S. were not employed by Koninklijke Grolsch, but by Grolsche Bierbrouwerij Nederland (§ 47). Thus, the judges say that they did not act on behalf of Koninklijke Grolsch.

According to the EU General Court, the notes of Mr. J.T., President of Administrative Council of Koninklijke Grolsch, on the invitation to a meeting with coordination of prices agenda dated 08/01/1999, and his 2 telephone conversations with directors of Heineken around 05/07/1999, do not prove the participation of Koninklijke Grolsch in the cartel agreement (§§ 61, 63). Previously Mr. J.T. had participated in the agreement only as a Director General of Grolsche Bierbrouwerij Nederland.

Documents of InBev company mention the participation of the “group Grolsch” in the cartel but do not indicate Koninklijke Grolsch as such (§ 56).

At the level of legal strategy, this case shows the way for transferring liability to a filial.

22 sept. 2011

ECHR: possession right covers any kind of money

The judgment 25575/08 provides a new interesting light on all cases involving money litigation. Moldovan individual enterprise Dragostea Copiilor-Petrovschi-Nagornii owned a secondary school in Chişinău. In 2001 the Rascani District Court ordered the enterprise to pay $ 78 400 to Mr M. (§ 5). This Order was executable for 3 years but Mr M. made a formal enforcement request only some 5 years later. Therefore, on 18/07/2007 Chişinău Court of Appeal dismissed M’s action due to the missed deadline (§ 8). From this point, the ECHR starts to consider $ 78 400 as “possession” of the individual enterprise (§ 40).

However on 13/07/2007 the Department for the Execution of Judgments wrote him a letter recognizing that his enforcement warrant had been registered within the 3 year deadline. The Moldovan Supreme Court of Justice allowed Mr M.’s appeal, since this letter could have been obtained later than 18/07/2007 (§ 13). Nonetheless, the ECHR replied that such a position does not preserve a “fair balance”, and is contrary to Article 1 of Protocol no. 1 to the Convention.

This case leads us to re-think lots of other litigations involving money.

11 sept. 2011

ECHR: the son of French President de Gaule could not insult Harki, since they are not defined, Boumaraf, 32820/08

Mr. Philippe de Gaulle, while making a comment on his book about his father Charles de Gaulle, implied that 100 000 Harki were traitors – at least as Mr. Amar Boumaraf understood this. The Harki are usually understood as Muslim Algerians who served as auxiliaries in the French Army during the Algerian War from 1954 to 1962.

Initially the question was whether the Harki are a “sufficiently limited group”. There are three judgments (15/10/1985, 06/12/1994, 12/09/2000) of the French Court of Cassation recognizing the existence of this group. Before the ECHR, the question was transformed into whether these three judgments are a “well-established jurisprudence”. The ECHR replied that despite a clear definition of the Harki in the judgment dated 12/09/2000, it “alone” cannot create a “well-established jurisprudence”.

10 sept. 2011

ECJ: European immunity of an MEP does not cover defamation, Patriciello, C-163/10

A Member of the European Parliament (MEP) has two kinds of immunity: the one guaranteed by the EU law in cases related to her opinions, and in other cases it is provided or not by national law. Italian MEP Aldo Patriciello has publicly declared that a police officer falsified the time concerned when booking several drivers whose vehicles were parked in contravention of road traffic laws. Thus, he made a “false accusation of a public official with aggravating circumstances” according to the prosecution (§ 11).

On 05/05/2009 the European Parliament decided to defend the immunity of Mr. Patriciello in arguing that this declaration is a political opinion expressing the right of the citizens to have an easy access to a hospital, which had an important impact on the daily life of his constituents. The MEP did not act for his own interest, and did not intend to insult the policewoman (§ 12).

However according to the ECJ this kind of opinion accusing the police officer did not have a “direct and obvious” connection with “parliamentary duties” (§§ 35-36). It must be underlined that this interpretation is applicable to the immunity directly provided by the EU law, but not to that existing under national law.

9 sept. 2011

Extracting fraud investigation documents from the OLAF, Tillack, 943/2007/PB

Fraud is an old problem of the EU. After the memorandum of whistleblower Paul van Buitenen dated 07/03/2002, and inaction of the OLAF (Office of Anti-Fraud Fight), journalist Hans-Martin Tillack published 2 articles on the subject in Stern. The OLAF decided to punish the journalist. He was accused of handing over € 8000 for certain investigation documents to an OLAF official. The OLAF requested the German prosecution to open an investigation, but Germans closed it (§ 3).

The complainant in case 943/2007/PB requested the OLAF to disclose the name of the OLAF official who signed the letter to the German prosecution, as well as the letter itself, to disclose the instructions to the relevant OLAF staff who negotiated starting the “swift action” against journalist Tillack with the Hamburg prosecution, as well as to disclose other documents on possible fraud within the European Commission.

The complainant filed the same request twice but the OLAF ignored it. Only after filing a complaint to the European Ombudsman the OLAF disclosed the name of its official who initiated the persecution of the journalist (§ 40), as well as provided a partial access to the documents.

The Ombudsman explained that the institution must give valid reasons enabling the applicant to decide whether the non-disclosure is grounded, and not limit itself with a simple statement that “it carried out a concrete and specific examination” (§ 58).

3 sept. 2011

"The Economist" establishes hegemony over other languages

Spanish trademark "El Economista" lost appellate proceedings to the UK trademark "The Economist" before the OHIM on 05/08/2011.

The Board of Appeal concluded that the trademarks are "visually similar at least to an average degree", since both contain the word "ECONOMIST", "THE" and "EL" have a common letter "E", and the Spanish letter "A" is at the end (marginality)(§ 28). Thus, the Board did not give any meaning to the colors (orange v black style), and to the fact that colors distinguish "ECO" from "NOMISTA" in the Spanish version.

According to the Board, the letters "ECONOMIST" are pronounced in the same manner, and it means that the aural similarity is "above average" (§ 29). Thus, the fact that in English we make accent on "CO", and in Spanish on "MI", did not had a value.

According to the Board of Appeal, both trademarks are conceptually "similar" (§ 30), and the fact that these are different languages is not a decisive factor.

In certain cases this decision will delete linguistic borders among Germanic, Romanic, and possibly also Slavic and Baltic languages.