Cuadernos de Derecho Transnacional: October 2023
The second issue of 2023 of the open-access journal Cuadernos de Derecho Transnacional has been released. As usual, it contains studies (Estudios) and notes (Varia), in Spanish and in other languages.
A selection kindly provided by the editorial team of the journal include the following studies.
Alfonso Luis Calvo Caravaca/Javier Carrascosa González, Ley aplicable a los regímenes económicos matrimoniales y Reglamento 2016/1103 De 24 Junio 2016. Estudio técnico y valorativo de los puntos de conexión (Law Applicable to Marriage Property Regimes in Regulation 2016/1103 of June 24, 2016. A Technical and Value Analysis of the Connecting Factors)
The purpose of this study is to explore the system of connections to determine the Law applicable to the matrimonial property regime in Regulation (EU) 2016/1103 of the Council of June 24, 2016 establishing reinforced cooperation in the field competition, applicable law, recognition and enforcement of resolutions in matrimonial property regimes. Not only are the connecting factors in the Regulation analyzed through a technical examination, but also using a value focused test. From a technical point of view, some solutions could have been presented with greater transparency and coherence with other European regulations. On the contrary, from a value view, it should be highlighted that the connecting factors used lead to efficient, predictable and clear solutions that favour proper management of matrimonial assets in our current social scenario, in which the spouses frequently change their country of habitual residence and nationality and in which the assets linked to the matrimonial economy are usually scattered throughout several countries.
Briseida Sofía Jiménez-Gómez, Distributed Ledger Technology in Financial Markets: The European Union Experiment (La tecnología de registro descentralizado en los mercados financieros: el experimento de la Unión Europea)
The European Union Regulation 2022/858 of 30 May 2022 establishes a pilot regime for market infrastructures based on distributed ledger technology. The Pilot Regulation is part of the 2020 Digital Finance Strategy whose objective is for the European Union to embrace the digital revolution and to benefit consumers and business. This article analyses the reasons of this new regulatory option and why this represents a different paradigm of legislation, considering first some advantages, risks and challenges that applying distributed ledger technology in financial markets can encounter. Moreover, this article examines the content of the EU Pilot Regulation with a critical perspective, comparing the previous proposal of Regulation with the current Pilot Regulation which enters into force mainly in March 2023. Significance of this Pilot Regulation could be enhanced if it coordinates with other policy goals such as sustainability and transparency set by the EU legislator. Lacking that coordination, this Pilot Regulation could be perceived as a miss opportunity to foster a digital and green financial markets transition.
Juliana Rodríguez Rodrigo, La publicidad de l@s influencers. (Influencer marketing)
Studies show that surreptitious advertising is a common practice carried out by influencers. This behaviour is an attack on the followers and on the advertiser’s competitors. In relation to the former, because it is not clear about the commercial nature of the influencer’s message and may make them think that they are dealing with a personal opinion of their leader. Regarding the latter, because, with it, they are making the brand compete unfairly with the rest of the competitors in the market. It is important, therefore, to identify when the advertising carried out by influencers is illegal because it is covert. There are two elements that must be present in order to reach this conclusion. Firstly, there must be a commercial purpose, which can be proven by the existence of a remuneration. And, secondly, this promotional purpose of the influencer does not appear clear and unequivocal to the user. In relation to the latter, the follower cannot deduce this commercial character either from the content of the message or from its location and, on the other hand, the influencer has not incorporated the necessary information to make it known.
The notes, instead, include the following.
Isabel Antón Juárez, Louboutin vs. Amazon: ¿Un litigio más sobre la responsabilidad de las plataformas digitales en el uso de una marca?. Comentario de la sentencia del TJUE de 22 de diciembre de 2022, asuntos C-148/21 y C-184/21 (Louboutin vs. Amazon: One more litigation about the liability of digital platforms in the use of a trademark? Commentary on the ECJ ruling of 22 December of 2022, cases C-148/21 and C-184/21)
The aim of this paper is the analysis of the ECJ ruling of 22 of December of 2022. The question that is resolved in the ruling we analyze is whether the fact that a third party that uses Amazon as a means to advertise and market counterfeit products can imply that the platform itself is directly liable for said infringement. It must be kept in mind that this direct responsibility of the platform would only be possible if it is considered that the platform itself uses another’s trademark within the meaning of art. 9.2 letter a) of Regulation (EU) 2017/1001. The study of this matter is necessary because it implies a greater precision even we can consider a change in the case law of the ECJ on the direct trademark liability of platforms. Following this ruling, a platform can be considered to use a trademark if, based on the perception of the average user who uses the platform, a link can be established between the trademark and the platform due to aspects such as (1) the way in which the platform offers the products (ad ex. in a homogeneous manner without differentiating between its own products and those of its sellers) and (2) the complementary services that the platform itself offers to its sellers.
Fernando Díez Estella, De nuevo la batalla por la cuantificación del daño y la estimación judicial: La STJUE tráficos Manuel Ferrer (Again, the battle of harm quantification and judicial estimation: the CJEU ruling tráficos Manuel Ferrer)
Almost a decade after the approval of Directive 2014/104/EU on damages arising from anticompetitive offenses, although the principles that inspire it are now firmly established, its practical application has encountered a myriad of problems, both substantive and procedural. The main obstacle faced today by those who exercise their right to compensation is undoubtedly the quantification of the damage. Together with the tools of access to the sources of evidence, or the presumptions to redistribute the burden of proof in the process, the possibility of judicial estimation of the compensable damage has been configured. This commentary analyzes this novel figure, following the CJEU Judgment in the Tráficos Manuel Ferrer case, as well as the Spanish jurisprudence in this respect, such as the emanating from the Commercial Court nº 3 of Valencia, and essentially the landmark Supreme Court’s sentences of June 2023. Although there are still some aspects to be defined, all these pronouncements have delimited when it is possible and when it is not possible to make use of this capacity.
