In this issue of Aphaia’s monthly series on EU regulatory case law find out more abot the latest European regulatory case law from March 2014 in the field of information society and competition:
In Case C 314/12 UPC Telekabel Wien request for a preliminary ruling concerned the interpretation of Article 5(1) and (2)(b) and Article 8(3) of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society and of certain fundamental rights enshrined in EU law. The request has been made in proceedings between (i) UPC Telekabel and (ii) Constantin Film and Wega concerning an application for UPC Telekabel to be ordered to block the access of its customers to a website making available to the public some of the films of Constantin Film and of Wega without their consent. Website was offering, without the agreement of Constantin Film and Wega, two film production companies, either a download or ‘streaming’ of some of the films which they had produced.
The Court of Justice of the European Union interpreted articles of Directive as meaning that a person who makes protected subject-matter available to the public on a website without the agreement of the rightholder, is using the services of the internet service provider of the persons accessing that subject-matter, which must be regarded as an intermediary. Given that rightholders have the exclusive right to authorise or prohibit any act of making available to the public, it must be stated that an act of making protected subject-matter available to the public on a website without the rightholders’ consent infringes copyright and related rights. The fundamental rights recognised by EU law must be interpreted as not precluding a court injunction prohibiting an internet service provider from allowing its customers access to a website placing protected subject-matter online without the agreement of the rightholders when that injunction does not specify the measures which that access provider must take and when that access provider can avoid incurring coercive penalties for breach of that injunction by showing that it has taken all reasonable measures, provided that (i) the measures taken do not unnecessarily deprive internet users of the possibility of lawfully accessing the information available and (ii) that those measures have the effect of preventing unauthorised access to the protected subject-matter or, at least, of making it difficult to achieve and of seriously discouraging internet users who are using the services of the addressee of that injunction from accessing the subject-matter that has been made available to them in breach of the intellectual property right, that being a matter for the national authorities and courts to establish.
This request for a preliminary ruling in Case C 132/13 Zentrale zur Bekämpfung unlauteren Wettbewerbs has been made in proceedings between Zentrale zur Bekämpfung unlauteren Wettbewerbs eV Frankfurt am Main (Centre for Protection Against Unfair Competition, Frankfurt am Main, ‘the Zentrale’) and ILME GmbH concerning affixation of the CE marking on the housing of multipole electrical connectors for industrial purposes.
ILME GmbH markets in Germany multiple electrical connectors manufactured in Italy by ILME SpA. The components for the connectors are chosen by the client in accordance with his needs. Once the various components have been delivered they are assembled by the client himself. The housing for the connectors bears the CE marking as provided for in Annex III to Directive 2006/95. However, the EC Declaration of Conformity related to that marking does not concern the connectors contained in the housing, but the housing itself. The Zentrale takes the view that affixing the CE marking is not justified in so far as it relates only to the housing and, therefore, does not offer any guarantee as to the safety of the assembled connectors. That marking is likely to mislead consumers and, therefore, in the circumstances of the case in the main proceedings, constitute an infringement of national rules prohibiting unfair competition. Since all electrical equipment must bear the CE marking pursuant to national legislation which transposes Directive 2006/95, the question arises as to whether the housing at issue constitutes such equipment. By its question, the referring court asked essentially whether Article 1 of Directive 2006/95 must be interpreted as meaning that housing for multipole connectors for industrial purposes, such as those at issue in the main proceedings, falled within the definition of ‘electrical equipment’ for the purposes of that provision, and must, therefore, bear the CE marking. The Court of Justice of the European Union held that Article 1 of Directive 2006/95/EC of the European Parliament and of the Council of 12 December 2006 on the harmonisation of the laws of Member States relating to electrical equipment designed for use within certain voltage limits must be interpreted as meaning that housing for multipole connectors for industrial use, such as those at issue in the main proceedings, is covered by the definition of ‘electrical equipment’ for the purposes of that provision and must, therefore, bear the CE marking as long as its proper incorporation and use for the purpose for which it was made does not mean that it ceases to comply with the relevant safety requirements for which it has been examined.
‘Misleading advertising’ and ‘comparative advertising’ are two independent infringements so in order to prohibit and penalise ‘misleading advertising’, it is not necessary that latter at the same time constitutes unlawful ‘comparative advertising’.
The request for a preliminary ruling in Case C 52/13 Posteshop has been made in proceedings between Posteshop, on the one hand, and the Autorità Garante della Concorrenza e del Mercato (Authority safeguarding Competition and the Market, ‘the Autorità’) and the Presidenza del Consiglio dei Ministri (Presidency of the Council of Ministers) on the other, concerning a decision finding that Posteshop had engaged in misleading advertising. The Autorità, by decision of 30 March 2010, found that the publication by Posteshop of advertising material seeking to promote its franchise network Kipoint constituted misleading advertising. It consequently, by the same decision, prohibited any future publication and imposed a fine of 100 000 € on Posteshop. Posteshop brought an action against that decision before the Tribunale amministrativo regionale per il Lazio (Regional Administrative Court, Lazio). That court dismissed that action as unfounded, holding, inter alia, that the system of protection does not concern only cases in which the advertising material includes both features of misleading advertising and features of unlawful comparative advertising. Posteshop brought an appeal against that decision before the referring court, which then referred a question to The Court of Justice of the European Union whether, with regard to the protection afforded to traders, Directive 2006/114 is to be interpreted as referring to misleading advertising and unlawful comparative advertising as two independent infringements and whether or not it is necessary, in order to prohibit and penalise misleading advertising, for that latter to also constitute unlawful comparative advertising. The Court of Justice of the European Union ruled that with regard to the protection afforded to traders, Directive 2006/114/EC of the European Parliament and of the Council of 12 December 2006 concerning misleading and comparative advertising is to be interpreted as referring to misleading advertising and unlawful comparative advertising as two independent infringements and to the effect that, in order to prohibit and penalise misleading advertising, it is not necessary that that latter at the same time should constitute unlawful comparative advertising.
Article 23 of Directive 2008/48/EC of the European Parliament and of the Council of 23 April 2008 on credit agreements for consumers and repealing Council Directive 87/102/EEC was interpreted by the Court of Justice of the European Union in the case C 565/12 LCL Le Crédit Lyonnais as precluding the application of a national system of penalties under which, in the event of failure on the part of the creditor to comply with its obligation, prior to conclusion of an agreement, to assess the borrower’s creditworthiness by consulting the relevant database, that creditor forfeits its entitlement to contractual interest but is automatically entitled to interest at the statutory rate, payable from the date of delivery of a court decision ordering that borrower to pay the outstanding sums, which is further increased by five percentage points if, on expiry of a period of two months following that decision, the borrower has not repaid his debt in full, where the referring court finds that — in a case such as that in the main proceedings, in which the outstanding amount of the principal of the loan is immediately payable as a result of the borrower’s default — the amounts which the creditor is in fact likely to receive following the application of the penalty of forfeiture of entitlement to contractual interest are not significantly lower than those which it could have received had it complied with its obligation to assess the borrower’s creditworthiness.
In Case C- 612/12 P Ballast Nedam v Commission the Court of Justice of the European Union (‘the Court’) reduced Ballast Nedam’s fine for the cartel on the road pavement bitumen market in the Netherlands from 4,65 million € to 3,45 million €. In 2006 the Commission imposed fines on 14 undertakings for their participa-tion in a cartel involving price-fixing on the road pavement market in Netherlands. In view of BN Infra’s direct participation in the infringement during the period from 1 October 2000 to 15 April 2002 and the fact that it wholly owned BNGW during the period from 21 June 1996 to 30 September 2000 and of Ballast Nedam’s 100% direct and indirect shareholding of BN Infra and BNGW, a fine in the amount of EUR 4.65 million was imposed jointly and severally on Ballast Nedam and BN Infra.The General Court dismissed Ballast Nedam NV’s action for annulment of Commission decision, which then brought an appeal before the Court. Ballast Nedam put forward two grounds of appeal, alleging respectively: (i) infringement of Article 27(1) of Regulation No 1/2003 and the rights of the defence; and (ii) misapplication by the General Court of the fundamental principles governing the imputation to parent companies of liability for cartel infringements committed by their subsidiaries.
In its judgement the Court sets aside the judgement of the General Court as regards the imputation of BNGW’s conduct to Ballast Nedam NV for the period from 21 June 1996 to 30 September 2000. The Court found that General Court erred in law in finding that Ballast Nedam NV’s rights of the defence had not been infringed. It is necessary for the Commission to indicate in the statement of objections in which capacity an undertaking is called upon to answer the allegations. Moreover, the ambiguity in the wording of the statement of objections is exacerbated by the fact that no statement of objections was sent to BNGW. With regard to Ballast Nedam’s reply to the statement of objections it cannot be concluded that Ballast Nedam had understood from its reading of the statement of objections that it would be held liable by the Commission for BNGW’s conduct. As regards the fine imposed jointly and severally on Ballast Nedam NV, the Court observed that, in respect of BN Infra’s conduct, for which the contested decision also held Ballast Nedam NV liable, the General Court had definitively reduced the fine to €3.45 million, stating that BNGW’s conduct for the period from 21 June 1996 to 1 October 2000 could not be imputed to BN Infra.
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