April case law digest

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Decided cases

Immigration policy

C-550/16 A and S v Staatssecretaris van Veiligheid en Justitie

Judgment date 12 April 2018

On 2 June 2014, an unaccompanied minor from Eritrea attained the age of majority having arrived in the Netherlands the previous February.  She was granted a residence permit for persons granted asylum, with effect from the date on which her application for asylum was submitted. An application was later submitted on her behalf for temporary residence permits for her parents and her three minor brothers for the purposes of family reunification. In 2015, the State Secretary rejected that application because on the date it was submitted, the minor had reached the age of majority.

The Court qualified ‘minor’ nationals of non-EU countries and stateless persons who are below the age of 18 at the moment of their entry into the territory of a Member State and of the introduction of their asylum application in that state and who, during the asylum procedure, attain the age of majority and thereafter are recognised as having refugee status.

It was clarified by the Court that in such a situation, the application for family reunification must be made within a reasonable time, namely in principle within three months of the date on which the minor concerned was recognised as having refugee status.

Transport

C-195/17, C-197/17 to C-203/17, C-226/17, C-228/17, C-254/17, C-274/17, C-275/17, C-278/17 to C-286/17 and C-290/17 to C-292/17 Helga Krusemann and Others & TUIfly GmbH

Judgment date 17 April 2018

Due to a ‘wildcat strike’ (a strike action undertaken by unionized workers without union leadership’s authorisation, support, or approval), many TUIfly flights were cancelled or delayed for three hours or more. TUIfly took the view that ‘extraordinary circumstances’, within the meaning of the EU regulation on air passenger rights, prevailed, so it refused to pay any affected passengers compensation.

The Court held that the two cumulative conditions for an event to be classified as an ‘extraordinary circumstance’ (1. it must not, by its nature or origin, be inherent in the normal exercise of the activity of the airline, and 2. it must be beyond TUIfly’s actual control) were not fulfilled. The first because restructuring and reorganising activities are part of a normal business management measures, the second because it was not beyond TUIfly’s actual control because the strike came from a TUIfly decision and ceased because of an agreement reached with the staff representatives.

The Court also observed that the fact that the strike should be classified, under the applicable German legislation, as a ‘wildcat strike’ because it was not formally initiated by a trade union is irrelevant for the assessment of if it was ‘extraordinary circumstances’. Making a distinction between strikes which, under applicable national law, are legal from those which are not to determine if they should be classified as ‘extraordinary circumstances’ would make the right to compensation dependent on the legislation specific to each Member State, which would undermine the objectives of that regulation which are to ensure a high level of passenger protection as well as equivalent conditions for the exercise of the activities of the air carriers on the territory of the European Union.

Citizenship

C-316/16 and C-424/16 Joined cases of B v Land Baden-Wurttemberg; Secretary of State for the Home Department v Franco Vomero

Judgment date 17 April 2018

In these joint cases, it was held by the Court that it is a prerequisite of eligibility for enhanced protection against expulsion that the person concerned must have a right of permanent residence. The requirement of having ‘resided in the host Member State for the previous ten years’, which is also a prerequisite of eligibility for that enhanced protection, may be satisfied where an overall assessment of the citizen’s situation leads to the conclusion that the integrative links between the citizen and the host Member State have not been broken.

Under the directive on free movement and residence, EU citizens who have resided legally for a continuous period of five years in a Member State other than their own acquire a right of permanent residence in that State. In that context, the host Member State may not take an expulsion decision against an EU citizen who has acquired a right of permanent residence on its territory, except on ‘serious grounds of public policy or public security’. In addition, an EU citizen who has resided in the host Member State for ‘the previous ten years’ enjoys an even higher level of protection, and an expulsion decision may not be taken against him unless it is based on ‘imperative grounds of public security’.

To determine whether the integrative links forged with the host Member State have been broken, an overall assessment of the situation of the person concerned at the time when the question of expulsion arises should be carried out. Thus, the fact that the person was placed in custody in the Member State does not automatically deprive him of the enhanced protection. This assessment must consider the strength of the links with the Member State before detention, the nature of the offence, the circumstances of the offence and the behaviour of the person during imprisonment. The Court pointed out that the social rehabilitation of the EU citizen in the State in which he has become genuinely integrated is not only in his interests but also that of the EU.

Principles of Community law

C-414/16 Vera Egenberger v Evangelisches Werk fur Diakonie und Entwicklung eV

Judgment date 17 April 2018

Ms Vera Egenberger, of no denomination, applied for a post offered by Protestant Work for Diaconate and Development, for a project for producing a parallel report on the United Nations International Convention on the Elimination of All Forms of Racial Discrimination. The work included the representation of the diaconate of Germany vis-à-vis the political world and the public and the coordination of the opinion-forming process internally. Applicants had to belong to a Protestant church or a church belonging to the Working Group of Christian Churches in Germany. When Ms Egenberger was not called to an interview, she considered that she had been discriminated against on grounds of religion, and so sued Evangelisches Werk.

The Court held that a balance must be found between autonomy of churches and the right of workers not to be discriminated against. In the event of any dispute, it must be possible for the balancing exercise to be subject to effective judicial review. They must nevertheless decide, on a case-by-case basis, whether the three criteria concerning a ‘genuine, legitimate and justified’ requirement are satisfied from the point of view of that ethos.

That requirement must be necessary and objectively dictated, having regard to the ethos of the church, by the nature of the occupational activity concerned or the circumstances in which it is carried out, and must comply with the principle of proportionality.

Freedom of establishment

C-645/16 Comseils et mise en relations (CMR) SARL v Demeures terre et tradition (DTT) SARL

Judgment date 19 April 2018

DTT concluded a commercial agency contract under which CMR were required to, on behalf of DTT, sell 25 houses a year. Roughly six months into the contract, it was terminated by DTT as CMR had only made one sale, so the purpose of the contract was not being fulfilled. The contract had provided for a 12-month trial period in which either party, subject to notice, could terminate the deal. CMR sought compensation for the loss resulting from this termination.

The Court observes firstly that, as that an EU directive does not regulate the provision of a trial period, such a period falls within scope of the freedom of contract of the parties and is not as such prohibited by the directive. The Court went on to say that the indemnity and compensation regimes laid down by the directive are not intended to penalise termination of the contract but to indemnify the commercial agent for his past services from which the principle will continue to benefit beyond the termination of the contractual relationship or for the costs and expenses he has incurred in providing those services.

Consequently, the agent cannot be denied the indemnity or compensation on the sole ground that the termination of the commercial agency contract occurred during the trial period, if the conditions for the award of the indemnity or compensation set out in the Directive are satisfied. This is supported by the objective of the Directive.

Advocate General Opinions

Provisions governing the institutions

C-151/17 Swedish Match AB v Secretary of State for Health

Opinion delivered on 12 April 2018 Advocate General Henrik Saugmandsgaard Øe

In the UK, the placing on the market of snus is prohibited. Sweden is exempt from that prohibition because the traditional use which is made of snus in that country. Swedish Match, a company which manufactures and markets snus, challenges the validity of the UK legislation and of the directive which it transposes. The company argues that the prohibition is invalid having regard to the principles of proportionality and non-discrimination; the EU legislature failed, in particular, to consider developments in scientific knowledge and in the regulatory framework applicable to tobacco products which have taken place since the earlier judgments of the Court.

AG Saugmandsgaard Øe’s Opinion considers that the prohibition on the placing on the market of tobacco for oral use (such as snus) is valid. The EU legislature did not exceed the limits of its discretion in finding that tobacco for oral use is addictive and harmful to health as it increases the risks of certain harmful effects, and the EU legislature considered that the lifting of that prohibition could result in introducing young people to smoking and increasing the risk of later use of tobacco for smoking. By contrast, he believes the effectiveness of tobacco for oral use as an aid for giving up smoking has not been established.

The Advocate General also rejects the argument that the principle of non-discrimination was infringed because tobacco for oral use receiving different treatment from that reserved for other tobacco products and electronic cigarettes. The Court has previously held that those products are different because tobacco for oral use was a novelty on the internal market and considered to have an attraction for young people, and the prohibition of tobacco for smoking would most likely lead to the emergence of a black market. Considering the treatment of e-cigarettes, he points out that they do not contain tobacco, function without combustion, and are relatively new products whose risks to health still need to be clarified.

Judicial cooperation in civil matters

C-335/17 Neli Valcheva v Georgios Babanarakis

Opinion delivered 12 April 2018 by Advocate General Maciej Szpunar

A Bulgarian national is the maternal grandmother of a child born in 2002. Since his parents’ divorce, the child has been habitually resident in Greece with his father, a Greek national. His grandmother wishes to obtain rights of access. Finding that she was unable to maintain quality contact with her grandson and having unsuccessfully sought the support of the Greek authorities, she applied to the Bulgarian courts for a determination of arrangements for her to exercise rights of access to her grandson. She requested that she see him regularly one weekend each month and that he stay at her home for two or three weeks during his holidays. The Bulgarian courts of first instance and appeal dismissed the action based on lack of jurisdiction on the ground that an EU Regulation provides for the jurisdiction of the courts of the Member State in which the child has his habitual residence (here, the Greek courts).

In his Opinion, AG Szpunar proposes that the Court of Justice rules that in matters of parental responsibility rights of access include the rights of access of grandparents. He noted the fundamental importance which the Regulation attributes to the principles of primacy of the best interests of the child, and analysed applicable international instruments such as the 1996 Hague Convention which adopts a broad concept of rights of access and so supports the integration of ties between near relatives.

Intellectual and industrial property

C-84/17 P, C-85/17 P, C-95/17 P Societe des produits Nestlé v Mondelez UK Holdings & Services

Opinion delivered 19 April 2018 By Advocate General Wathelet

Nestlé had applied to EUIPO in 2002 to register a 3-D sign as an EU trade mark which relates to the ‘Kit Kat 4 fingers’ product marketed by Nestlé; this mark was registered in 2006. In 2007, Mondelez filed an application for a declaration of invalidity of the registration. In 2012 EUIPO rejected that application; it took the view that Nestlé’s mark had acquired distinctive character through the use that had been made of it in the EU. Mondelez brought an action before the General Court for the annulment of the decision. The General Court annulled EUIPO’s decision in 2016, holding that the examination without ruling on the relevant public’s perception of the mark in four other Member States and without analysing the evidence from those states. Nestlé, Mondelez and the EUIPO have appealed the ECJ against the General Court’s judgment.

AG Wathelet’s Opinion considers firstly that that, by its judgment, the General Court annulled the decision taken by EUIPO. As explained at the hearing that annulment implies that, in the absence of an appeal and given the operative part of the judgment, EUIPO would have been obliged to declare the trade mark at issue invalid, since that declaration of invalidity was essentially the aim of Mondelez’s application to EUIPO. Consequently, Mondelez cannot be considered to have been unsuccessful in its claims submitted before the General Court. Moreover, contrary to what is required by the Rules of Procedure of the Court of Justice, Mondelez’s appeal does not seek to set aside the operative part of the judgment under appeal, but to have set aside some of the grounds of that judgment.

The AG considers that evidence adduced for some national markets might suffice to cover others. That does not mean that the absence of evidence in relation to one Member State alone would be reason to not seek evidence of distinctive character across the EU. However, a trade mark does not have a unitary character and cannot therefore be registered as a trade mark if the relevant public in part of the EU does not perceive it as an indication of the commercial origin of the goods or services which it covers.

The AG also notes that Nestlé confirmed that it had not included in the case file evidence seeking to establish that the evidence provided for some markets also applied to the other ones that evidence had not been sought for or could act as a basis for extrapolating the acquisition, by the trade mark at issue, of distinctive character through use in those five countries. In the absence of such evidence, he concluded that the General Court had to annul EUIPO’s decision, as it in fact did. Accordingly, the AG proposes that the appeals should be dismissed.

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