February case law digest

Charter of Fundamental Rights of the European Union

Case C‑473/16 F v Bevándorlási és Állampolgársági Hivatal

Judgment date 25 January 2018

The Court ruled asylum seekers must not be subjected to psychological tests to determine whether they are homosexual. The case relates to a Nigerian man who submitted an asylum application in Hungary in April 2015. He feared persecution in Nigeria for being gay. The claim was rejected after a psychologist’s report failed to confirm his homosexuality. A court in Szeged, Hungary, must now reconsider his case in light of the ECJ ruling.

In its decision, the Court stated that Article 4 of Directive 2011/95/EC on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, must be interpreted as meaning that it does not preclude the authority responsible for examining applications for international protection from ordering that an expert’s report be obtained in the context of the assessment of the facts and circumstances relating to the declared sexual orientation of an applicant. However, the procedures for such a report must be consistent with the fundamental rights guaranteed by the Charter of Fundamental Rights of the European Union, and the authority in question must not base their decision solely on the conclusions of the expert’s report.

The Court also stated that Article 4 of Directive 2011/95, read in the light of Article 7 of the Charter of Fundamental Rights, must be interpreted as precluding the preparation and use of a psychologist’s expert report for the purpose of providing an indication of the sexual orientation of that applicant on the basis of projective personality tests.

Equal treatment of men and women in matters of employment

Cases C‑142/17 and C‑143/17 Maturi & Others v Fondazione Teatro dell’Opera di Roma

Judgment date 7 February 2018

Preliminary ruling concerning the interpretation of Directive 2006/54/EC of the European Parliament and of the Council of 5 July 2006 on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation (OJ 2006 L 204, p. 23) and Article 21 of the Charter of Fundamental Rights of the European Union.

Several workers employed as dancers in the Fondazione Teatro dell’Opera di Roma claimed discrimination after they were dismissed on the grounds that they had reached the working age limit. Under national (Italian) law, the retirement age for workers in the performing arts sector, in the category for dancers, was 47 years old for women and 52 years old for men. In 2009, a new decree came into force, changing the age limits for workers of both sexes, setting a common working age limit at 45 years old. However, the provision included an optional transition period applicable for a period of two years from the date of its entry into force, pursuant to which dancers could continue to work until the retirement age previously in force, that is 47 years old for women and 52 years old for men,

The Court held that Article 14(1)(c) of Directive 2006/54 must be interpreted as meaning that national rules, pursuant to which workers employed as dancers having reached the retirement age laid down by those rules of 45 years old for both women and men, have the option for a transitional period of two years to continue to work up to the working age limit laid down by the previous rules, set at 47 years old for women and 52 years old for men, establishes direct discrimination based on sex which is prohibited by that directive.

Competition

Case C‑144/17 Lloyd’s of London v Agenzia Regionale per la Protezione dell’Ambiente della Calabria

Judgment date 8 February 2018

Preliminary ruling relating to the interpretation of the principles of transparency, equal treatment and non-discrimination which derive from Articles 49 and 56 TFEU and are referred to in Article 2 of Directive 2004/18/EC on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts. The Court ruled that national courts can adopt legislation banning Lloyd’s syndicates from tendering in certain circumstances.

The case involved two Lloyd’s syndicates who tendered for an award of a public service contract for insurance in Italy. The relevant Italian body, Arpacal, excluded the syndicates from the procedure on the grounds that the tenders by the syndicates were both signed by the Lloyd’s General Representative for Italy. Arpacal argued that this was inconsistent with an Italian statute which prevents tenders for the award of public contracts if they are attributable to a single decision-making centre. The Italian court referred the case to the CJEU to determine whether the Italian statute complied with EU law.

The CJEU held that an automatic ban is not permissible, however it is possible for an EU Member State to exclude tenderers “where it finds, on the basis of unambiguous evidence, that their tenders were not drawn up independently, which is a matter that falls to be determined by the referring court”.

Freedom of movement for workers

Case C-518/15 Ville de Nivelles v Rudy Matzak                                                                                                     

Judgment date 21 February 2018

The cour du travail de Bruxelles (Higher Labour Court, Brussels, Belgium) asked the Court of Justice whether time spent by a retained firefighter on stand-by duty should be considered ‘working time’ within the meaning of the Working Time Directive (2003/88).

The Court (Fifth Chamber) ruled that:

Article 17(3)(c)(iii) of Directive 2003/88/EC of the European Parliament and of the Council of 4 November 2003 concerning certain aspects of the organisation of working time must be interpreted as meaning that the Member States may not derogate, with regard to certain categories of firefighters recruited by the public fire services, from all the obligations arising from the provisions of that directive, including Article 2 thereof, which defines, in particular, the concepts of ‘working time’ and ‘rest periods’.

Article 15 of Directive 2003/88 must be interpreted as not permitting Member States to maintain or adopt a less restrictive definition of the concept of ‘working time’ than that laid down in Article 2 of that directive.

Article 2 of Directive 2003/88 must be interpreted as not requiring Member States to determine the remuneration of periods of stand-by time such as those at issue in the main proceedings according to the prior classification of those periods as ‘working time’ or ‘rest period’.

Article 2 of Directive 2003/88 must be interpreted as meaning that stand-by time which a worker spends at home with the duty to respond to calls from his employer within 8 minutes, very significantly restricting the opportunities for other activities, must be regarded as ‘working time’.

Referrals, Upcoming Decisions and Advocate General Opinions

Charter of Fundamental Rights of the European Union

[2018] IESC 3 The Minister for Justice and Equality v Thomas Joseph O’Connor

Judgment date 1 February 2018

Ireland’s supreme court has declined to extradite a company director wanted for fraud to London because by the time he finishes his prison sentence, the UK will have left the EU. They ruled that his case should be referred to the European Court of Justice to resolve the issue.

The UK authorities issued a European arrest warrant – the standard procedure that normally guarantees swift delivery within the EU – and O’Connor was arrested by Gardaí. However the Irish supreme court declined to extradite him to the UK as they noted that he would continue to be imprisoned beyond the March 2019 withdrawal date.

Lawyers for O’Connor said that Ireland was being asked to surrender an EU citizen to a country where the EU charter of fundamental rights might no longer be capable of enforcement.

The judgment it issued revealed the man is one of about 20 people in a similar position resisting removal to Britain on identical legal grounds. The questions referred to the CJEU relate to whether a member state should decline to extradite a person subject of a European arrest warrant to the UK due to the uncertainty of whether their treaty rights could be exercised after the UK’s departure. The supreme court is also requesting clarification on whether they should postpone the finalisation of a request for surrender to await greater clarity about the relevant legal regime which is to be put in place after the UK’s withdrawal.

Energy

Case C-632/16 Dyson Ltd v NV BSH Home Appliances

Opinion date 22 February 2018

Dyson has brought an action before the Antwerp Commercial Court against BSH Home Appliances, a company marketing Siemens and Bosch vacuum cleaners. Dyson claims that some of the vacuum cleaners marketed by BSH were inaccurately labelled with a Class A energy label. Dyson further argues that consumers were misled because BSH does not mention that the energy performance tests were carried out with an empty dust bag.

BSH brought a counterclaim against Dyson in relation to its allegedly defamatory advertising.

The Antwerp Commercial Court has some doubts about the way in which Regulation 665/2013 (the ‘Vacuum Cleaner Regulation’) should be interpreted. In its view, BSH is complying strictly with the Regulation but it considers that, given the different ways in which the different vacuum cleaners operate and the effect that this may have on energy performance test results (i.e. energy performance with an empty dust bag vs a used one), there is an issue of compatibility with the Unfair Commercial Practices Directive (2005/29).

The Antwerp court therefore asks the Court of Justice whether strict compliance with the Vacuum Cleaner Regulation (without supplementing the label with information about the test conditions which lead to the energy efficiency classification) can be regarded as a misleading omission within the meaning of the Unfair Commercial Practices Directive. In addition, it asks the Court of Justice whether the Regulation precludes a company from supplementing the energy label with symbols which communicate information about test conditions.

In his opinion, Advocate General Henrik Saugmandsgaard Øe stated that “Article 3(4) of Directive 2005/29 must be interpreted as meaning that that directive is not applicable in the circumstances of the main proceedings, given that the traders concerned have no leeway as regards the use of the energy label and supplementary labels which reproduce or clarify the information contained in the energy label.”

Trade Marks

Cases C-84/17 P Société de produits de Nestlé C-85/17 P Mondelez UK and C-95/17 P EUIPO

Hearing date 22 February 2018

In 2002, Nestlé made an application for registration as an EU trademark for the following three-dimensional mark:

In 2006, the mark was registered for the following products: ‘sweets, bakery products, pastries, biscuits, cakes, waffles’. In 2007, Cadbury Schweppes (now Mondelez UK) applied to have the mark annulled. The mark was initially annulled but, following an appeal brought by Nestlé, EUIPO upheld the trademark as valid. EUIPO considered that the mark had acquired distinctive character through use.

Mondalez brought an appeal against this decision before the General Court.  Mondalez challenged the conclusion that mark has acquired distinctive character in the whole of the European Union.

On 15 December 2016 the General Court annulled EUIPO’s decision. It considered that distinctive character through use must be demonstrated in all of the Member States concerned (i.e. in each of the Member States of the EU at the date of filing the application). The General Court found that EUIPO could not validly conclude its examination without coming to a conclusion regarding the perception of the mark by the public in all of the Member States (here Belgium, Ireland, Greece and Portugal).

Mondalez, Nestlé and EUIPO have each brought an appeal against the General Court’s decision before the Court of Justice. Nestlé and EUIPO argue that the General Court was wrong to find that it is necessary to establish that distinctive character acquired through use of a mark must be shown in all of the Member States concerned.

Mondalez’s appeal concerns the finding that a chocolate bar consisting of four trapezoid shaped fingers could be classified as a sweet or biscuit. It also disputes the General Court’s conclusion that it has been established that the mark had acquired distinctive character in 10 Member States.