Case C-18/18 Eva Glawisching-Piesczek v Facebook Ireland
EU Member State: Austria
Date of Decision: 3 October 2019
Glawischnig-Piesczek sued Facebook Ireland in the Austrian courts to seek an order that Facebook Ireland remove a comment published by a user on that network that was harmful to her reputation, and all other allegations that were identical or equivalent in content.
The Court of Justice held that the Directive on electronic commerce, which seeks to strike a balance between the different interests at stake, does not preclude a court of a Member State from ordering a host provider to:
- remove information which it stores, the content of which is identical to the content of information which was previously declared to be unlawful or to block access to that information, irrespective who requested the storage of that information;
- to remove information which it stores, the content of which is equivalent to the content of information which was previously declared to be unlawful, or to block access to that information, provided that the monitoring of and search for the information concerned by such an injunction are limited to information conveying a message the content of which remains essentially unchanged compared with the content which gave rise to the finding of illegality and containing the elements specified in the injunction, and provided that the differences in the wording of that equivalent content, compared with the wording characterising the information which was previously declared to be illegal, are not such as to require the host provider to carry out an independent assessment of that content (thus, the host provider may have recourse to automated search tools and technologies); and
- to remove information covered by the injunction or to block access to that information worldwide within the framework of the relevant international law, and it is up to Member States to take that law into account.
Case C-759/18 OF v PG (Divorce involving a minor)
EU Member State: Romania
Date of Decision: 3 October 2019
OF and PG are Romanian nationals who were married in Romania in 2000 and had a child the following year. Shortly after the birth of their child, they settled in Italy. They separated in 2012 and the Italian courts awarded exclusive custody of the child to PG (the mother) and ordered the father to pay maintenance. The Italian court also determined the father’s rights of access.
The father subsequently brought an application for divorce before the Court of First Instance in Romania. The Romania court is uncertain of whether it has jurisdiction to rule on the application for divorce and to take measures relating to parental responsibility and maintenance obligations where there is no express agreement between the parties on the subject.
The Court of Justice held that where an application of divorce is brought before a court of the Member State of the spouses’ common nationality, in this case Romania, although their habitual residence is in another Member State, that court has jurisdiction to rule on that application pursuant to point (b) of Article 3(1) of Regulation No 2201/2003 and that the grounds listed under Article 3(1) do not establish any hierarchy and are alternatives. The defendant is not required to give consent to the jurisdiction of the court for the divorce proceedings.
Second, the Court held that in order to ensure the effective implementation of the Regulation, it is for each court in accordance with Article 17 of that regulation to determine whether it has jurisdiction. Articles 3(1) and 17 of the Regulation are to be interpreted so that the fact that the couple seeking dissolution of the marriage have a minor child is irrelevant for the purposes of determining the court’s jurisdiction to rule on the application for divorce, since the court has jurisdiction to rule on that application pursuant to Article 3(1)(b) of that regulation.
Third, although Article 8 of the Regulation provides a general jurisdiction in matters of parental responsibility in favour of the courts of the Member State in which the child is habitually resident, Article 12(1)(b) of the Regulation allows for the jurisdiction to be given to the courts of Member State that has jurisdiction, by virtue of Article 3, to rule on the application to dissolve the marriage. Therefore, where the maintenance is ancillary to parental responsibility, the court of the Member State of the spouses’ common nationality has jurisdiction. Article 12(1) requires some form of express or at least unequivocal agreement regarding the prorogation of jurisdiction in matters of parental responsibility between all parties to the proceedings. Where the defendant has not made an appearance in the court, there is no agreement to the court ruling on issues relating to parental responsibility and maintenance obligations.
Case C-128/18 Dorobantu
EU Member State: Germany
Date of Decision: 15 October 2019
This case concerns the interpretation of Article 4 of the Charter of Fundamental Rights of the European Union (the Charter) and Council Framework Decision 2002/584/JHA (12 June 2002) on the European arrest warrant and surrender procedures between Member States. The case revolves around the grounds for refusal of the execution of a European arrest warrant.
Dorobantu is a Romanian national living in Germany, the Romanian courts issued a European arrest warrant for Dorobantu, for the purposes of conducting a criminal prosecution against him.
The court in Hamburg, Germany found that there was evidence of systemic and generalised deficiencies in the detention conditions in Romania. Dorobantu would be, whilst held on remand, kept in a 4-person cell measuring 12.30 m2, 12.67 m2 or 13.50 m2 or in a 10-person cell measuring 36.25 m2. However, the court also found that if the authorities refused the surrender of Dorobantu to the Romania authorities, the offences that he is accused of would go unpunished and run counter to the objective of ensuring the effectiveness of the criminal justice system in the European Union. The court requested a preliminary ruling by the Court of Justice to ascertain the requirements that arise under Article 4 of the Charter, with respect to detention conditions in the issuing Member State and the criteria to be used in assessing whether those requirements have been met.
The Court of Justice held that in order to safeguard the efficacy of the European arrest warrant system, the executing Member State has to take account of the time limits set by Article 17 of the Framework Decision for the adoption of a final decision on the execution of the European arrest warrant. There is no need to generally assess the conditions in all prisons of the issuing Member State, rather the prisons in which the individual might be detained. In order to make this assessment within the time limits the issuing Member State must provide all the necessary information on the conditions in which the individual will be held.
There is no minimum standards regarding personal space for detainees set under EU law and so the Court of Justice relied on the interpretation of Article 3 of the ECHR by the European Court of Human Rights, as Article 4 of the Charter is essentially the same in essence. To that end, when calculating available space sanitary facilities should not be taken into account, but space occupied by furniture should be. Nevertheless, there must be space for the detainee to move around normally.
In addition, there is a strong presumption of violation of Article 3 of the ECHR where the personal space available to a detainee is below 3 m2 in a multi-occupancy accommodation. Article 4 of the Charter can be interpreted accordingly. However, this presumption can be rebutted if time spent in cells with less than the required minimum personal space is short, occasional and minor, is accompanied with sufficient movement outside the cell and adequate out of cell activities and the general conditions of detention are appropriate and there are no aggravating aspects of the conditions of detention.
Finally, if the executing judicial authorities have proof of substantial grounds suggesting that- after the surrender of the person to the issuing Member State- the person will face a real risk because of the conditions of detention in the prison in which the latter is intended to be detained, then factors such as the efficacy of the judicial cooperation in criminal matters and the principles of mutual trust and recognition cannot be taken into account. Consequently, the Court reiterates that an infringement of Article 4 of the Charter is a clear justification for restricting the application of the principles of mutual trust and recognition.
C-836/18 Subdelegación del Gobierno en Ciudad Real v RH
Member State: Spain
Date of Judgement: 21/11/2019
Questions referred by the Spanish Court:
Is the requirement that a Spanish citizen who has not exercised his right of free movement must satisfy the conditions laid down in Article 7(1) of Royal Decree 240/2007, as a necessary condition for the grant of a right of residence to his third-country spouse under Article 7(2) of that Royal Decree, liable, in the event that those conditions are not satisfied, to constitute an infringement of Article 20 TFEU if, as a result of the refusal to grant that right, the Spanish citizen is compelled to leave the territory of the European Union as a whole?
All of the above presupposes the requirement laid down in Article 68 of the Spanish Civil Code (Código Civil) for spouses to live together.
In any event, notwithstanding the foregoing, does the practice of the Spanish State of automatically applying the rule laid down in Article 7 of Royal Decree 240/2007, and refusing to grant a residence permit to a family member of an EU citizen where that EU citizen has never exercised freedom of movement, solely and exclusively on the ground that the EU citizen does not satisfy the conditions laid down in that provision, without having examined specifically and individually whether there exists a relationship of dependency between that EU citizen and the third-country national of such a nature that, for any reason and in the light of the circumstances, it would mean that were the third-country national refused a right of residence, the EU citizen could not be separated from the family member on which he is dependent and would have to leave the territory of the European Union, infringe Article 20 TFEU in the terms set out above?
C-786/18 Ratiopharm GmbH v Novartis Consumer Health GmbH
Member State: Germany
Date of Judgement: 21/11/2019
Question referred by the German Court:
Is Article 96(1) of Directive 2001/83/EC 1 to be interpreted as meaning that pharmaceutical companies may also distribute free finished medicinal products to pharmacists, if their packaging is labelled ‘for demonstration purposes’, the medicinal products are used by the pharmacist to test the product, there is no risk of further distribution (of the unopened product) to end users and the further conditions for distribution set out in Article 96(1)(a) to (d) and (f) to (g) of that directive are met?
If the answer to Question 1 is in the affirmative: Does Article 96(2) of Directive 2001/83/EC permit a national provision such as Paragraph 47(3) of the Arzneimittelgesetz (Law on medicinal products; ‘the AMG’), if that provision is interpreted as meaning that pharmaceutical companies may not distribute free finished medicinal products to pharmacists, if their packaging is labelled ‘for demonstration purposes’, the medicinal products are used by the pharmacist to test the product, there is no risk of further distribution (of the unopened product) to end users and the further conditions for distribution set out in Article 96(1)(a) to (d) and (f) to (g) of that directive and in Paragraph 47(4) of the AMG are met?
C-584/18 D. Z. v Blue Air — Airline Management Solutions SRL
Member State: Greece
Date of Judgement: 21/11/2019
Question referred by the Greek court:
Should Decision No 565/2014/EU 1 be interpreted as producing direct legal effect in the form, on the one hand, of the right of a third country national without requiring to have a visa to enter the Member State of destination and, on the other hand, an obligation on that Member State of destination not to require him to have such a visa where that national is in possession of a visa or residence permit included in the list of visas and residence permits recognised on the basis of Decision No 565/2014/EU, which the Member State of destination has undertaken to apply?
Where an air carrier directly and/or through its authorised and designated representatives at the airport of the Member State of departure denies boarding to a passenger, giving as its reason that the authorities of the Member State of destination have refused him entry to that State because he allegedly has no entry visa, can the air carrier be considered as exercising powers and acting as an emanation of that State, such that Decision No 565/2014/EU can be cited against it by the passenger concerned before the courts of the Member State of departure in order to prove that he had a right of entry without requiring an additional visa and to claim compensation for infringement of that right and, by extension, of his contract of carriage?
Can an air carrier directly and/or through its authorised and designated representatives rely upon a decision by the authorities of the Member State refusing a third country national entry to the territory of that State in order to deny that national boarding, without first issuing and/or giving him a written substantiated decision with respect to the refusal of entry (see Article 14(2) of Regulation (EC) No 2016/399, 2 previously Article 13 of Regulation (EC) No 562/2006, which requires a substantiated decision stating the reasons for refusal of entry), in order to safeguard respect for the fundamental rights and, in particular, legal protection of the rights of the passenger concerned (see Article 4 of that Regulation)?
Does Article 2(j) of Regulation (EC) No 261/2004 3 mean that cases of denied boarding are exempt from its scope whenever boarding is denied by decision of the air carrier due to alleged ‘inadequate travel documentation’? Should it be interpreted to mean that denied boarding does fall within the scope of the Regulation where a court finds, based on the particular circumstances of each specific case, that the travel documentation was adequate and that the denial of boarding was unsubstantiated or unlawful in that it infringed EU law?
Can a passenger be deprived of the right to compensation granted under Article 4(3) of Regulation (EC) No 261/2004 where the air carrier relies upon a clause precluding or limiting its liability in the event of allegedly inadequate travel documentation, where such a clause is included in the standard terms, published in advance, governing the operation of and/or provision of services by the air carrier? Does Article 15, read in combination with Article 14, of that Regulation prevent the application of such clauses precluding and/or refusing the air carrier’s liability?
C-2/19 A.P. v Riigiprokuratuur
Member of State: Estonia
Date of Judgment: 14/11/2019
Question referred by the Estonian Court:
Is the recognition and supervision of execution of a judgment of a Member State compatible with Council Framework Decision 2008/947/JHA 1 of 27 November 2008 on the application of the principle of mutual recognition to judgments and probation decisions with a view to the supervision of probation measures and alternative sanctions even where the sentenced person has by that judgment been conditionally released without any additional obligations being imposed, so that the person’s only obligation is to avoid committing a new intentional offence during the probation period (this being a suspended sentence within the meaning of Paragraph 73 of the Estonian Criminal Code)?
C-564/18 LH v Bevándorlási és Menekültügyi Hivatal
Member of State: Hungary
Date of Judgment:
Question referred by the Hungarian Court:
May the provisions on inadmissible applications in Article 33 of Directive 2013/32/EU, 1 on common procedures for granting and withdrawing international protection (recast) (‘the Procedures Directive’), be interpreted as not precluding a Member State’s legislation pursuant to which an application is inadmissible in the context of the asylum procedure when the applicant has arrived in that Member State, Hungary, via a country where he is not exposed to persecution or a risk of serious harm, or in which a sufficient degree of protection is guaranteed?
May Article 47 of the Charter of Fundamental Rights of the European Union and Article 31 of the Procedures Directive — having regard also to the provisions of Articles 6 and 13 of the European Convention on Human Rights — be interpreted as meaning that a Member State’s legislation complies with those provisions when it lays down a mandatory time limit of eight days for the administrative-law proceedings before a court in respect of applications declared inadmissible in asylum procedures?
C-234/18 „AGRO IN 2001“
Member of State: Bulgaria
Date of Judgment: 31 October 2019
Question referred by the Bulgarian Court:
Can Article 1(1) of Directive 2014/42/EU (the Directive) on the freezing and confiscation of proceeds of crime within the European Union, be interpreted to allow a Member State to adopt provisions on civil law confiscation that does not require a criminal conviction?
Is it sufficient under the Directive that criminal proceedings have been commenced against the person whose assets are the subject of confiscation in order to bring and conclude civil-law confiscation proceedings?
Can the grounds given in Article 4(2) of the Directive be interpreted as permitting civil-law confiscation that is not based on a criminal conviction?
Is Article 5(1) of the Directive to be interpreted as meaning that a right to property can be taken away, as a result of having been directly or indirectly obtained by way of criminal offence, by looking at the discrepancy between the value of a person’s assets and his lawful earnings, where there is no final criminal conviction against that person?
Does Article 6(1) of the Directive provide for confiscation from third parties as an additional or alternative means of direct confiscation or as an additional means of extended confiscation?
Does Article 8(1) of the Directive uphold the principle of presumption of innocence and prohibit confiscation that is not based on conviction?
C-507/18 Associazione Avvocatura per i diritti LGBTI
Member of State: Italy
Date of Judgment: 31 October 2019
Question referred by the Italian Court:
Should Article 9 of Directive 2000/78/EC (the Directive) be interpreted so that an association of lawyers specialised in the protection of LGBTI persons, where the statutes of that association state that the objective is to promote LGBTI culture and respect of LGBTI persons, should be recognised as a legal person having a collective interest and as a non-profit association having standing to bring proceedings, including in respect of a claim for damages in the circumstances of alleged discrimination against LGBTI persons?
Interpreting Articles 2 and 3 of the Directive, does a statement expressing a negative opinion with regards to homosexuals given in an interview on a radio show, whereby, the interviewee stated that he would never appoint an LGBTI person to his law firm, fall within the scope of anti-discrimination rules laid down in the Directive, even if that statement does not relate to any current or planned recruitment procedure by the interviewee?
C-192/18 European Commission v Republic of Poland
Member of State: Poland
Date of Judgment: 5 November 2019
Question referred by the Polish Court:
The applicant has claimed that the introduction of a distinction between the retirement age for men and women working as ordinary judges, Supreme Court judges and prosecutors, is a failure by the Republic of Poland to fulfil its obligations under Article 158 of the TFEU and under Articles 5(a) and 9(1)(f) of Directive 2006/54/EC on the implementation of the principles of equal opportunities.
In addition, the applicant claims that by lowering the retirement age applicable to ordinary judges whilst at the same time granting the Minister of Justice the right to decide whether to extend the period of active service of judges, the Republic of Poland has failed to fulfil its obligations under the second paragraph of Article 19(1) of TFEU read in conjunction with Article 47 of the Charter of Fundamental Rights of the European Union.
C-215/18 Primera Air Scandinavia
Member of State: Czech Republic
Date of Judgment: 7 November 2019
Question referred by the Czech Court:
Did a contractual relationship exist between the applicant and the defendant for the purposes of Article 5(1) of Regulation No 44/2001 (the Regulation) on the jurisdiction and recognition and enforcement of judgements in civil and commercial matters, even though no contact had been concluded between the applicant and the defendant and the flight was part of a package of services provided on the basis of a contract been the applicant and a third party travel agency?
Can that relationship be qualified as consumer in accordance with section 4, Article 15 to 17 of the Regulation?
Does the defendant have legal capacity to be sued in an action seeking satisfaction of the claims arising from Regulation No 261/2004, establishing common rules on compensation and assistance to passengers in the event of denied boarding and cancellation or long delay of flights?
C-280/18 Flausch and Others
Member of State: Greece
Date of Judgment: 7 November 2019
Question referred by the Greek Court:
How can the public be informed that it is to participate, in the context of an environmental impact assessment, in the development consent procedure for a project? And how is information then to be provided that consent has been granted to the project? These questions are raised in the present case.
Although these questions appear at first sight to be rather technical and formalistic, they are of vital importance — in the same way as service in civil proceedings (2) — to the effectiveness of public participation and the application of legal protection. If it is not informed in a timely manner, the public concerned neither participates in the consent procedure nor avails itself of legal protection in good time. Because the specific details of these matters are regulated by the Member States, that is to say, their procedural autonomy applies, the framework in EU law in this regard is provided by the principles of equivalence and effectiveness.
No comments yet