This issue of Aphaia’s new monthly series on EU regulatory case law features the summary of the latest European regulatory case law from January 2014 in the field of information society, competition and environment.
Click on ‘read more’ to find details about each case.
Information Society and Data protection
C-355/12 Nintendo and Others – copyright and related rights in the information society . Read more
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The request for a preliminary ruling concerned the interpretation of Article 6 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. The request has been made in proceedings between the Nintendo undertakings and PC Box and 9Net, concerning the sale by PC Box, of ‘mod chips’ and of ‘game copies’ (‘PC Box equipment’) through the website managed by PC Box and hosted by 9Net.
The Nintendo undertakings, members of a group which creates and produces videogames, market two types of products for those games, namely portable systems (‘DS’ consoles) and fixed console videogame systems (‘Wii’ consoles). The Nintendo undertakings have adopted technological measures, namely a recognition system installed in the consoles and the encrypted code of the physical housing system, onto which the videogames which are protected by copyright are registered. Those measures have the effect of preventing the use of illegal copies of videogames. Games lacking a code cannot be launched on either of the two types of equipment marketed by the Nintendo undertakings. These technological measures prevent the use of programs, games and, generally, multimedia content on the consoles not from Nintendo. The Nintendo undertakings have observed the existence of PC Box equipment which, once installed on the console, circumvent the protection system present on the hardware and enable illegal use of videogames. Considering that the principal purpose of the PC Box equipment was to circumvent and to avoid the technological protection measures of Nintendo games, the Nintendo undertakings brought proceedings against PC Box and 9Net before the Tribunale di Milano.
By the Courts’ ruling in case C-355/12 – ‘Nintendo and Others on copyright and related rights in the information society’, the Directive must be interpreted in such a way that the concept of an ‘effective technological measure’ is capable of covering technological measures of equipping not only the housing system containing the protected work, such as the videogame, with a recognition device in order to protect it against acts not authorised by the holder of any copyright, but also portable equipment or consoles intended to ensure access to those games and their use.
It is for the national court to determine whether other measures or measures which are not installed in consoles could cause less interference with the activities of third parties or limitations to those activities, while still providing comparable protection of the right holder’s rights. Accordingly, it is relevant to take account, inter alia, of the relative costs of different types of technological measures, of technological and practical aspects of their implementation, and of a comparison of the effectiveness of those different types of technological measures as regards the protection of the right holder’s rights, that effectiveness however not having to be absolute. That court must also examine the purpose of devices, products or components, which are capable of circumventing those technological measures. In that regard, the evidence of the use which third parties actually make of them will, in the light of the circumstances at issue, be particularly relevant. The national court may, in particular, examine how often those devices, products or components are in fact used in disregard of copyright and how often they are used for purposes which do not infringe copyright.
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Competition
T-385/11 BP Products – Dumping, Subsidies, Imports of biodiesel originating in the United States. Read more
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The General Court in case T- 385/11 dismissed the action by BP Products North America v. Council for the partial annulment, first, of Council Implementing Regulation (EU) No 443/2011 of 5 May 2011 extending the definitive countervailing duty imposed by Regulation (EC) No 598/2009 on imports of biodiesel originating in the United States of America to imports of biodiesel consigned from Canada, whether declared as originating in Canada or not, and extending the definitive countervailing duty imposed by Regulation (EC) No 598/2009 to imports of biodiesel in a blend containing by weight 20% or less of biodiesel originating in the United States of America, and terminating the investigation in respect of imports consigned from Singapore and, secondly, of Council Implementing Regulation (EU) No 444/2011 of 5 May 2011 extending the definitive anti dumping duty imposed by Regulation (EC) No 599/2009 on imports of biodiesel originating in the United States of America to imports of biodiesel consigned from Canada, whether declared as originating in Canada or not, and extending the definitive anti-dumping duty imposed by Regulation (EC) No 599/2009 to imports of biodiesel in a blend containing by weight 20% or less of biodiesel originating in the United States of America, and terminating the investigation in respect of imports consigned from Singapore, in so far as those regulations affect the applicant.
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Environment
C-67/12 Commission v. Spain – energy performance of buildings. Read more
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In case C-67/12 Commission v. Spain the Court of Justice of the European Union declared that by failing to adopt within the prescribed period all the laws, regulations and administrative provisions necessary to ensure compliance with Articles 3, 7 and 8 of Directive 2002/91/EC of the European Parliament and of the Council of 16 December 2002 on the energy performance of buildings, the Kingdom of Spain had failed to fulfil its obligations under those provisions.
The Court explained that Directive 2002/91 concerns both new buildings and existing buildings and provides for the regular inspection of all boilers. However it does not set the minimum frequency of inspections, therefore Member States are required to set a specific frequency of inspections and notify the Commission of the measures adopted in order that the Commission can verify these measures make it possible to realise the objectives laid down in the aforementioned directive. The duty to provide energy advice is a very general obligation, as it does not refer specifically to a duty to provide advice on either the replacement of the boiler or other alternative solutions. The duty to provide advice is imposed on maintenance companies, and requires regular inspections by independent experts.
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C-537/11 Manzi – air pollution from ships and maximum sulphur content in marine fuels. Read more
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In case C-537/11 Manzi and Compagnia Naviera Orchestra on air pollution from ships a request has been made for a preliminary ruling on the interpretation of Council Directive 1999/32/EC relating to a reduction in the sulphur content of certain liquid fuels. The proceedings in question are those between Mr Manzi and the Genoa Port Authority concerning the administrative penalty order made against them for failing to comply with the maximum sulphur content in marine fuels. Mr Manzi and the Compania Naviera Orchestra brought an appeal against that order.
The Court of Justice of the European Union ruled that cruise ships fall within the scope of interpreted Directive with regard to the criterion of ‘regular services’. Cruise ships must operate cruises, with or without intermediate calls, which come to and end in the port of departure or another port, provided that those cruises are organized at a particular frequency, on specific dates and, in principle, at specified departure and arrival times, with interested persons being able to choose freely between the various cruises offered, which is a matter for the referring court to ascertain. The validity of the Directive cannot be examined in the light of the general principle of international law pacta sunt servanda or the principle of cooperation in good faith on the grounds that the provision of the Directive may lead to an infringement of the International Convention for the Prevention of Pollution from Ships and thereby oblige the Member States to infringe their obligations with respect to the other contracting parties thereto.
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