Case law Developments in PIL

October 2021 at the Court of Justice of the European Union

Only one judgment on PIL matters, namely the one in C-581/20, TOTO (first chamber: judges Bonichot, Bay Larsen, Safjan, Jääskinen and Toader, the latter as reporting judge) is scheduled so far for publication in October 2021. It will happen next Wednesday. In addition, two opinions are expected towards the end of the month.

Case C-581/20

The Varhoven kasatsionen sad (Bulgaria) referred the following questions to the Court of Justice:

1) Is Article 1 of [the Brussels I bis Regulation] to be interpreted as meaning that a case such as that described in this order for reference must be regarded in whole or in part as a civil or commercial matter within the meaning of Article 1(1) of that regulation?

2) After the right to make an application for provisional/protective measures has been exercised and the court having jurisdiction as to the substance of the matter has already ruled on that application, is the court seised of an application for interim relief on the same basis and under Article 35 of [the Brussels I bis Regulation] to be regarded as not having jurisdiction from the point at which evidence is produced that the court having jurisdiction as to the substance of the matter has given a ruling on that application?

3) If it follows from the answers to the first two questions referred that the court seised of an application under Article 35 of [the Brussels I bis Regulation] has jurisdiction, must the conditions for the ordering of protective measures under Article 35 of [the Brussels I bis Regulation] be interpreted independently? Should a provision which does not allow a protective measure to be ordered against a public body in a case such as the present one be disapplied?

In the case at hand, the State Treasury – Director-General for National Roads, Poland – commissioned the Italian companies Toto S.p.A Costruzioni Generali and Vianini Lavori S.p.A. to construct the S-5 expressway. Pursuant to clause 20.6 of the contract, the parties agreed on the jurisdiction of the Polish courts. Under the contract, guarantees were provided to ensure the fulfilment of the obligations. Furthermore, another guarantee was issued by an insurance company (ZD ‘Euroins’ AD) to secure payment of a contractual penalty in case of failure to complete the construction works in time.

Toto S.p.A Costruzioni Generali and Vianini Lavori S.p.A. brought actions in Poland against the State Treasury, seeking a declaration that the defendant is not entitled to demand payment of the contractual penalty agreed in the contract, since the conditions for such payment are not met. The Italian companies requested as well an interim measure obliging the defendant to refrain, in particular, from making use of guarantee provided by ZD ‘Euroins’ AD.

The Polish court considered the applications for an interim measure unfounded. The companies applied then to the Sofia City Court for an interim measure in connection with the actions brought before the District Court of Warsaw. The Sofia City Court rejected that application. The Sofia Court of Appeal reversed the decision and issued an attachment order against the receivable of the Ministry of Finance, Director-General for National Roads and Motorways, Poland, arising from the guarantees above mentioned.

The State Treasury of Poland appealed against the Supreme Court of Cassation (Bulgaria), which is the referring court in the main proceedings.

AG Rantos was asked to provide an opinion on the second question. It was published the 9th of September and can be consulted here – no English translation so far.

Case C-421/20

AG Szpunar’s opinion in C-421/20, Acacia, is due on 28 October. The request comes from the Oberlandesgericht Düsseldorf (Higher Regional Court Düsseldorf, Germany). It focuses on the interpretation (application?) of Article 82(5) of Council Regulation (EC) No 6/2002 of 12 December 2001 on Community designs (CDR), whereby “Proceedings in respect of the actions and claims referred to in Article 81(a) and (d) may also be brought in the courts of the Member State in which the act of infringement has been committed or threatened.”

According to Article 81(a) and (d), “The Community design courts shall have exclusive jurisdiction: (a) for infringement actions and – if they are permitted under national law – actions in respect of threatened infringement of Community designs; … (d) for counterclaims for a declaration of invalidity of a Community design raised in connection with actions under (a)”.

The questions referred read as follows

1) In proceedings for an infringement of Community designs, can the national court dealing with the infringement proceedings having international jurisdiction pursuant to Article 82(5) of the CDR apply the national law of the Member State in which the court dealing with the infringement proceedings is situated (lex fori) to subsequent claims in relation to the territory of its Member State?

2) If Question 1 is answered in the negative: Can the ‘initial place of infringement’ for the purposes of the CJEU judgments in Cases C 24/16, C 25/16 (Nintendo v BigBen) regarding the determination of the law applicable to subsequent claims under Article 8(2) of [the Rome II Regulation] also lie in the Member State where the consumers to whom internet advertising is addressed are located and where goods infringing designs are put on the market within the meaning of Article 19 of the CDR, in so far as only the offering and the putting on the market in that Member State are challenged, even if the internet offers on which the offering and the putting on the market are based were launched in another Member State?

The case concerns a car manufacturer (the claimant in the main proceedings), who is, inter alia, the registered holder of Community design No 001598277-0002 (‘the Registered Design’). The defendant, an Italian company, manufactures rims for motor vehicles in Italy and sells them throughout the European Union. In Germany, it markets rims under the name ‘WSP Italy’, including the ‘Neptune GT’ model. The claimant considers that the distribution of the rims in Germany by the defendant constitutes an infringement of its Registered Design, whereas the defendant invokes the repair clause in Article 110 of the Council Regulation on Community Designs.

The Landgericht (Regional Court) ordered the defendant – geographically limited to the Federal Republic of Germany – to cease and desist, to provide information, to return documents and to surrender items for the purpose of destruction, and established the defendant’s obligation to pay damages. It based its international jurisdiction on Article 82(5) of the Community Design Regulation, assumed that the defendant had infringed the Registered Design, and applied German law to the subsequent claims asserted (damages, information, rendering of accounts, return of documents and surrender of items for the purpose of destruction) in accordance with Article 8(2) of the Rome II Regulation.

The defendant brought an appeal against that judgment. It continues to rely in particular on Article 110 of the CDR. In addition, it takes the view that under Article 8(2) of the Rome II Regulation Italian law is applicable to the subsequent claims asserted by the claimant

The case has been assigned to the fifth chamber (judges Regan, Lenaerts, Ilešič, Jarukaitis, Lycourgos, the latter as judge-rapporteur).

Case C-498/20

The opinion of AG Campos Sánchez-Bordona on C-498/20, BMA Nederland, is expected on the same day. The questions referred concern jurisdiction in tort matters in relation to a Peeters-Gatzen action, with an association defending collective interests intervening. The sixth chamber (Bay Larsen, Jääskinen and Safjan as reporting judge) will adjudicate.

Legal Secretary CJEU Full Professor PIL, University of La Laguna (Spain) Senior research fellow MPI Luxembourg (on leave)

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