Case C-356/19 Delfly v Smartwings Poland sp. z o.o., formerly Travel Service Polska sp. z o.o.

Date of judgement: 3rd September

EU Member State: Poland

Facts: A passenger had a confirmed reservation with the air transport company Smartwings Poland. Upon arrival at check in the passenger was informed of a 3 hour delay to the flight. The passenger then claimed compensation under the Air Passenger Rights Regulation for the sum of €400 in Polish Zlotys.

Smartwings contended that the claim should be rejected on the ground that the claim was filed in an incorrect currency, PLN and not Euros. The Polish court then sought a preliminary ruling from the Court of Justice

Decision: The Court stated that the purpose of the regulations are to ensure a high level of protection for passengers, with provisions relating to this objective to be interpreted broadly. The claim brought in dispute of an inconvenience caused by a delay of this nature could not be restricted due to a claim in a national currency and not in Euros, as this would substantially restrict the rights of those the regulation is meant to protect.

The Court also noted that the imposition of a condition that compensation may be paid only in Euros and not in the tender of a non-Euro Member State is likely to lead to a difference in treatment of passengers from those states.

The Court concluded that compensation should be payable in the national currency of the Member State, as well as Euros, and claims of this nature cannot be dismissed on the sole grounds of this distinction.

Advocate General’s Opinion in Case C-62/19 Star Taxi App SRL v Unitatea Administrativ Teritorială Municipiul Bucureşti prin Primar General et Consiliul General al Municipiului Bucureşti

Date of judgement: 10th September

EU Member State: Romania

Facts: S.C. Star Taxi App SRL, a company established in Bucharest, operates a smartphone app which allows communication directly between taxi drivers and their passengers, which makes it possible to search through a list of taxi drivers available for any given journey. The passenger pays the fare directly to the taxi and the app does not set the fare.

In 2017 the Bucharest Municipal Council adopted Decision No.626/2017, which extended the scope of obligations relating to authorisation relating to ‘dispatching’ operators of IT applications such as Star Taxi App. The company was then fined 4,500 Romanian Lei (approx. €929) for having infringed these rules.

Taxi Star App took the view that the activity they were carrying out constituted an Information Society service and would therefore be excluded from the prior authorization laid down in the Directive on electronic commerce and brought an action in a Bucharest Regional Court. The Regional Court sought a ruling from the Court of Justice on whether an app that puts passengers in touch with their drivers constitutes an ‘Information Society Service. If yes, it asks the Court to assess the validity of the Decision under EU law.

Decision: The Advocate General states an opinion that the service offered by the app displays some characteristics of those described under the Directive on electronic commerce of an Information Society service. However, according to case law, as a service may not be regarded as falling within the concept of Information Society service even if it displays characteristics contained in the definition. This in particularly true where the service provided by the electronic means is inherently linked to the provision of another service, which is the primary service not provided by the electronic means.

Considering Star Taxi App does not recruit taxi drivers or exercise control or influence over the conditions under which the transport service is provided, such as Uber, the role here is contained only to ancillary services which is not essential for the efficacy of the primary service.

The Advocate General concluded that a service consisting of putting passengers in touch with driver via an electronic application constitutes an Information Society service where that service is not inherently linked to the taxi transport service and does not form an integral part of that service. The Directive on electronic commerce also does not preclude the application to an Information Society service where that service is not inherently linked to the taxi transport service so that it does not form an integral part of the service. Finally, the Advocate General stated that the Services Directive precludes the application of such an authorization scheme unless it complies with the criteria laid down in that legal instrument, which is a matter for the national court to determine.

Case C-907/18 and C-39/19 Telenor Magyarország Zrt. v Nemzeti Média- és Hírközlési Hatóság Elnöke

Date of judgement: 15th September

EU Member State: Hungary

Facts: The company Telenor, established in Hungary, is an internet service provider, among other services. One of the packages offered to their customers involved preferential access to certain applications on a zero-tariff scheme, wherein data consumed using these apps did not consume allowances for the month and the apps could be used once their data allowance had been used up. The question arose as to whether these packages were consistent with Regulation 2015/2120 concerning internet access. The Hungarian National Court found that it was not compliant with the provisions set out in Article 3(3) and ordered Telenor discontinue these packages.

The Budapest High Court, upon hearing actions by Telenor sought a preliminary ruling from the Court of Justice in order to determine how to interpret and apply Article 3(1), (2) and (3) of the Regulation.

Decision: The Court observed that the rights safeguarded by end users of internet services are intended to be exercised ‘via their internet access service’, and that Article 3(2) requires that such service does not place any limitation on the exercise of those rights. It follows, then, that Article 3(2) must be assessed in light of that requirement by national regulatory authorities, subject to national review by the national courts.

The Court held that the use of zero-tariff measures such as those found in these packages acted to limit the exercise of end user’s rights within the meaning of Article 3(2), with these packages favouring certain applications over others and leading to increased usage of the zero-tariffed applications.

Concerning Article 3(3), it does not lay down a requirement to assess the effect of measures blocking or slowing down traffic on the exercise of end users’ rights. ‘Where measures blocking or slowing down traffic are based not on objectively different technical quality of service requirements for specific categories of traffic, but on commercial considerations, those measures must in themselves be regarded as incompatible with Article 3(3)’.

Consequently, packages such as these are generally liable to infringe upon Article 3(2) and (3) of the Regulation and should be examined by national courts accordingly.

Case C-449/18 P EUIPO v Messi Cuccittini and C-474/18 P J.M.-E.V. e hijos v Messi Cuccittini

Date of judgement: 17th September

EU Member State: Spain

Facts: In August 2011 footballer Lionel Messi filed an application with the European Union Intellectual Property Office (EUIPO) for registration of a figurative sign as an EU trademark in relation to sports and gymnastics clothing, footwear and equipment. In November 2011 Jaime Coma filed a notice in opposition to the registration, alleging a likelihood of confusion with the EO word marks MASSI, registered for similar sportswear. The opposition was upheld, which was then appealed by Lionel Messi, bringing an action to the General Court of the European Union for annulment of the EUIPO’s decision.

Decision: The General Court dismissed the appeals brought by EUIPO and the now owners of the trade mark J.M.-E.V. e hijos on the following grounds:

  • · The public perception of the marks MASSI and MESSI, given the football players reputation, counteracted the similarity between the two marks and excluded the likelihood of confusion.
  • · That the reputation of the person applying for the trademark should be taken into account when determining an application of this nature, contrary to the arguments posed by J.M.-E.V. e hijos.
  • · Arguments based on case law from the judgement in RuizPicasso and Others v OHIM were based on misreading that judgement. Having noted that the relevant public perceived the signs MASSI and MESSI as being conceptually different, the General Court could rightly apply that case-law.

Case C-777/18 WO v Vas Megyei Kormányhivatal

Date of judgement: 23rd September

EU Member State: Hungary

Facts: In 1987 a Hungarian national suffered a retinal detachment in his left eye and lost vision in that eye. In 2015 he was diagnosed with glaucoma in his right eye. He sought treatment in Hungary but was unsuccessful in find effective treatment as his eyesight continued to deteriorate.

In 2016 a doctor practicing in Germany was contacted regarding the man’s treatment, wherein dates were arranged for surgery to be carried out. The doctor later regarded the man’s intra-ocular pressure as considerably higher than normal and arranged for emergency surgery to be carried out to save his eyesight, which was carried out successfully.

An application for the costs of treatment to be reimbursed was rejected by the Hungarian authorities on the grounds that the healthcare in question constituted scheduled treatment in respect of which had not received prior authorization provided for by the EU regulations on the coordination of social security systems.

An action was brought against the decision rejecting the application before the Administrative and Labour Court, which in turn requested a ruling from the Court of Justice as to whether the regulations on cross-border healthcare or freedom to provide services preclude a Member State from providing payment to another without prior authorization regardless of the state of patient health or the urgency of the healthcare required.

Decision: According to previous case law from the Court of Justice an insured person is entitled to be reimbursed directly by the competent institution for costs incurred in respect of treatment in an amount which would have normally been reimbursed had that person received prior authorisation, even when it was not, in fact, authorised.

It is up to national courts to decide whether the case before it involves individual circumstances and the conditions for the assumption of costs by the competent institution pursuant Article 20(2) of Regulation 883/2004.

In this case, the Court found that the examination carried out by the German professional might serve to indicate that he could not have waited for the decision of the competent institution on an application for authorisation. However, it was ultimately up to Hungarian national court to determine whether the conditions were met.

The court also found that a system of prior authorisation such as that established under Hungarian national law constitutes a restriction of the freedom to provide services. Although the Hungarian Government argued that such restriction is justified by the objective of ensuring the optimal planning and management and ensuring control over costs relating to healthcare, the Court of Justice found that such a requirement can be relied on only in respect of hospital care or major non-hospital care and is inadmissible respect of a medical consultation.

Therefore, a failure to adequately consider these conditions in relation to reimbursement may constitute a disproportionate restriction of the freedom to provide services and fails to have regard to the Directive 2011/24.

Advocate General’s Opinions in Joined Cases C-83/19 Asociaţia « Forumul Judecătorilor Din România » v Inspecţia Judiciară, C-127/19 Asociaţia « Forumul Judecătorilor Din România » and Asociaţia Mişcarea Pentru Apărarea Statutului Procurorilor v Consiliul Superior al Magistraturii and C-195/19 PJ v QK and in Cases C-291/19 SO v TP and others, C-355/19 Asociaţia « Forumul Judecătorilor din România » and Asociaţia « Mişcarea Pentru Apărarea Statutului Procurorilor » and OLv Parchetul de pe lângă Înalta Curte de Casaţie şi Justiţie - Procurorul General al României and C-397/19 AX v Statul Român - Ministerul Finanţelor Publice

Date of judgement: 23rd September

EU Member State: Romania

Facts: With the intention of improving independence and effectiveness of their judiciary within the negotiations for joining the EU, Romania adopted Law No 303/2004 on the Statute of Judges and Prosecutors, Law No 304/2004 on the judicial organization and Law No 317/2004 on the Superior Council of Magistracy, known as the ‘Justice Laws’.

By Decision 2006/928/EC the Commission established the ‘Mechanism for Cooperation and Verification’ (the MCV), which periodically reports Romania’s progress with regards to independence and efficient judiciary. Romania has adopted five emergency ordinances which have been evaluated negatively in the 2018 and 2019 MCV reports.

Three institutional aspects are concerned here: 1. the interim appointment of the head of the Judicial Inspection, 2. the creation of a specific section within the Public Prosecutor’s Office responsible for the investigation of offences committed within the judiciary, and 3. changes in provisions on material liability of judges. The Court was asked to establish their compatibility with the principles of the rule of law, effective judicial protection, and judicial independence, enshrined in a number of provisions of EU law.

Decision: The Opinion of the Advocate General proposes that the Court rule that the Decision establishing the MCV is an act of an EU institution, was validly adopted on the basis of the Treaty of Accession and is legally binding on Romania. However, the periodic reports established by the Commission on its basis are not legally binding, but they are to be duly taken into consideration by that Member State.

The Court also rules that EU law precludes national provisions whereby the government adopts, by derogation from the legal rules normally applicable, a system for the interim appointment of the management positions of the body in charge of carrying out disciplinary investigations within the judiciary, the practical effect of which is the reinstatement in office of a person whose mandate has already expired.

Thirdly, the Court rules that EU law precludes the establishment of a specific prosecution section with exclusive jurisdiction for offences committed by members of the judiciary, if the creation of such a section is not justified by genuine and sufficiently weighty reasons and if it is not accompanied by sufficient guarantees to dispel any risk of political influence on its functioning and composition.

Finally, the Court rules that EU law neither precludes national provisions on State liability for judicial error, nor the existence of the possibility of the State to subsequently launch a recovery action for civil liability against the judge concerned in cases of bad faith or gross negligence. However, those procedures must offer sufficient guarantees to ensure that members of the judiciary are not subjected to direct pressure liable to affect their decisions. It is for the national court to assess whether those conditions are satisfied.

Case C-195/20 Generalbundesanwalt beim Bundesgerichtshof v XC

Date of judgement: 24th September

EU Member State: Germany

Facts: XC was prosecuted in Germany in three separate sets of criminal proceedings, first in 2011 for one year and nine months, again in 2016 for a crime committed in Portugal for one year and three months, and finally in 2018 wherein a German Public Prosecutor’s Office requested the Portuguese authority to renounce the application of the specialty rule and consent to the execution of the sentence imposed under the 2011 sentence. This rule, laid out in Article 27(2) of Framework Decision 2002/584, states that a person who surrendered may not be prosecuted, sentenced or otherwise deprived of their liberty for an offence committed prior to their surrender other than for which they surrendered. However, Article 27(3)(g) provides that the specialty rule does not apply where the executing judicial authority which the surrendered the person gives consent.

In 2018, without receiving a response from the Portuguese authority, XC was released. A European Arrest Warrant was later issued against XC for the purposes of obtaining judgement for the 2011 sentence, with XC being arrested in Italy. The Italian executing authority surrendered XC to the German authorities. An investigation was also required into a third incident to which Italian authorities also gave consent.

Upon being taken into custody XC was convicted of the offence and sentenced to a combined seven years, inclusive of the 2011 sentence. XC brought an appeal on a point of law against the 2019 judgement on the grounds that, in so far as the Portuguese executing judicial authority did not consent to his prosecution for the offence committed in Portugal, the German authorities were not entitled to prosecute him. The referring court sought a ruling.

Decision: The Court ruled that ‘Article 27(2) and (3) of the Framework Decision must be interpreted as meaning that the specialty rule provided for in Article 27(2) does not preclude a measure involving deprivation of liberty taken against a person referred to in a first EAW on the basis of an offence different to that which constituted the basis for their surrender under that warrant and prior to that offence, when that person’s departure from the Member State which issued the first EAW was voluntary and they were surrendered to that Member State under a second EASW issued after that departure for the purposes of executing a custodial sentence, provided that, under the second EAW, the judicial authority executing that warrant consented to the extension of the prosecution to the offence which gave rise to that measure involving deprivation of liberty’.

Therefore, in the present case XC’s departure from Germany was voluntary, once he had served his sentence in that Member State for that offence, he is no longer entitled to rely on the specialty rule in relation to the first EAW. The only surrender relevant to te assessment of compliance with the specialty rule is the one carried out on the basis of the second EASW, with the consent required in Article 27(3)(g) being given.