Summer case law digest

1. Decided Cases

Case C-543/17 European Commission v Kingdom of Belgium

EU Member State: Luxembourg

Date of Decision: 8 July 2019

In 2014, the European Parliament and the Council adopted an EU directive which aims to facilitate and to encourage the roll-out of high-speed electronic communications networks. Member States were required to transpose the directive into their national law by 1 January 2016 at the latest.

On 15 September 2017 the Commission brought an action for failure to fulfil obligations before the Court of Justice, taking the view that Belgium had neither fully transposed the directive nor notified the national transposing measures. In addition, it requested that Belgium be ordered to pay a daily penalty payment from the date of delivery of the judgment. On expiry of the prescribed period, the Court again held that Belgium had failed to fulfil its obligations under the directive.

The Court highlighted that Article 260(3) TFEU aims to provide an incentive to Member States to transpose and apply directives within the periods prescribed by the EU legislature. The Court also stated that the aim pursued by Article 260(3) TFEU was not only to induce the Member States to end an infringement as soon as possible, but also to simplify and speed up the procedure for the imposition of financial penalties in this context.

Since Belgium, at the time of the Court’s examination of the facts, had neither adopted the measures necessary to transpose several provisions of the directive into its domestic law, nor notified such transposing measures to the Commission, the Court concluded that Belgium had in part persisted in its infringement. Consequently, the Court ordered Belgium to pay the Commission a daily penalty payment of €5,000 until the Member State puts an end to the infringement,.

This is the first time the Court has interpreted and applied Article 260(3) TFEU.

Case C-163/18 HQ and Other v Aegean Airlines

EU Member State: Luxembourg

Date of Decision: 10 July 2019

Three persons booked return flights between Eelde and Corfu through Hellas Travel. Those flights formed part of a ‘package tour’, the price of which was paid to Hellas Travel. However, a few days before the agreed departure date, Hellas Travel informed the three travellers that their trip had been cancelled. Since it was no longer possible to obtain the price previously agreed with Hellas Travel, Aegean Airlines decided to cease operating flights to and from Corfu. Hellas was declared insolvent on 3 August 2016 and did not reimburse the three travellers the cost of their air tickets.

The Court of Justice was asked to ascertain whether a passenger who, under the directive on package travel, has the right to hold his tour organiser liable for reimbursement of the cost of his air ticket, can also claim reimbursement of the cost of that ticket from the air carrier, on the basis of the regulation on passenger rights.

The Court stipulated that the mere existence of a right to reimbursement, arising under the directive on package travel, is sufficient to rule out the possibility for a passenger, whose flight forms part of a package tour, to be able to claim reimbursement of the cost of his ticket from the operating air carrier. The Court considered that the right to reimbursement of the cost of the ticket, pursuant to the regulation and the directive, are not cumulative, otherwise the passengers concerned would receive unjustified overcompensation to the detriment of the operating air carrier.

The Court highlighted that under the directive, tour organisers must provide sufficient evidence of security for the refund of money paid over in the event of insolvency. Where a Member States fails to properly transposes the obligations under the directive, the traveller concerned is entitled to bring an action for damages against the Member Sate concerned for the loss incurred by him as a result of an infringement of EU law.

Case C-649/17 Bundesverband der Verbraucherzentralen und Verbraucherverbände — Verbraucherzentrale Bundesverband eV v Amazon EU Sàrl

EU Member State: Germany

Date of Decision: 10 July 2019

Amazon EU was sued by the Federal Union of Consumer Organisations and Associations to have it declared that Amazon did not respect its legal obligation to provide consumers with an efficient means to enter into contact, in so far as it did not inform consumers in a clear and comprehensible manner about its telephone and fax numbers.

The Court of Justice noted that the Consumer Rights Directive seeks to ensure a high level of consumer protection, and to this end, requires traders to provide consumers with a means of contacting the said organisation, guaranteeing direct and efficient communication. Nevertheless, the Court stipulated that it was necessary to strike a balance between a high level of consumer protection and the competitiveness of enterprises.

An unconditional obligation imposed on traders to provide consumers, in all circumstances, with a telephone number or to establish a telephone or fax line, or to create a new email address was considered by the Court to be disproportionate. Moreover, it was highlighted that the directive does not preclude traders from providing other means of communication (such as electronic contact forms, instant messaging or telephone callback), so long as those means of communication allow for direct and efficient communication between consumers and traders.

The Court of Justice held that the directive precludes national legislation, noting that the directive does not oblige traders to establish a telephone or fax line, or to create a new email address to allow consumers to contact them in all circumstances. The Court further stipulated that it is for the national courts to assess whether the means of communication made available allows consumers to communicate efficiently with traders and whether information about those means of communication are accessible in a clear and comprehensible manner. The fact that a telephone number was available only after a series of clicks on a website does not, in itself, imply that the means used for giving information to consumers is not clear and comprehensible.

Case C-502/18 CS and Others v České aerolinie a.s

EU Member State: Luxembourg

Date of Decision: 11 July 2019

Eleven passengers, who were the subject of a single reservation departing from Prague (Member State) to Bangkok via Abu Dhabi (non-Member States), claimed compensation from the Czech air carrier České aerolinie following a 488-minute delay. The first of those connecting flights arrived on time. However, the second flight, performed, under a code-share agreement, by the air carrier Etihad Airways was delayed. Where a delay of more than three hours occurs, passengers may be entitled to compensation under the regulation on the rights of air passengers.

The passengers brought, before the Czech courts, proceedings against České aerolinie seeking the compensation provided for by the regulation on the rights of air passengers. However, České aerolinie contended that it cannot be held responsible for the lateness of the flight connecting Abu Dhabi and Bangkok given that that flight was performed by another air carrier.

The Court of Justice stated that a flight with one or more connections which is the subject of a single reservation constitutes a whole for the purposes of the right of passengers to compensation provided for in the regulation on the rights of air passengers. Accordingly, connecting flights of which the first flight was performed from an airport located in the territory of a Member State fall within the scope of that regulation even if the second of those connecting flights was performed by a non-Community carrier from and to a country which is not an EU Member State.

The Court further provided that under the regulation on the rights of air passengers, the obligation to pay compensation to passengers falls solely on the operating air carrier of the flight concerned. Since České aerolinie actually performed a flight under the contract of carriage entered into with the passengers concerned, it can be categorised as the operating air carrier. Consequently, the Court concluded that České aerolinie is, in principle, liable to pay the compensation provided for in the regulation because of the long delay, even though that delay occurred in the connecting flight. An operating air carrier that has performed the first flight can therefore not take refuge behind a claim that the performance of a subsequent flight operated by another air carrier was imperfect.

The Court also highlighted that in the above circumstances, the operating air carrier that has had to make payment of compensation to passengers has the right to bring an action against the other air carrier in order to obtain redress for that financial cost under the regulation on the rights of air passengers.

2. Recent Cases

Case C-556/17 Alekszij Torubarov v Bevándorlási és Menekültügyi Hivatal

Member State: Hungary

Date of Judgement: 29/07/2019

Question referred by the Hungarian Court:

Is Article 46(3) of Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and withdrawing international protection, in conjunction with Article 47 of the Charter of Fundamental Rights of the European Union, to be interpreted as meaning that the Hungarian courts have the power to amend administrative decisions of the competent asylum authority refusing international protection, and also to grant such protection?

Conclusion:

Article 46(3) of Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and withdrawing international protection, read in conjunction with Article 47 of the Charter of Fundamental Rights of the European Union, must be interpreted as meaning that, in circumstances, such as those at issue in the main proceedings, where a first-instance court or tribunal has found — after making a full and ex nunc examination of all the relevant elements of fact and law submitted by an applicant for international protection — that, under the criteria laid down by Directive 2011/95/EU of the European Parliament and of the Council of 13 December 2011 on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection and for the content of the protection granted, that applicant must be granted such protection on the ground that he or she relied on in support of his or her application, but after which the administrative or quasi-judicial body adopts a contrary decision without establishing that new elements have arisen that justify a new assessment of the international protection needs of the applicant, that court or tribunal must vary that decision which does not comply with its previous judgment and substitute its own decision for it as to the application for international protection, disapplying as necessary the national law that would prohibit it from proceeding in that way.

Case C-589/17 Prenatal S.A. v Tribunal Económico Administrativo Regional de Cataluña (TEARC)

Member State: Spain

Date of Judgement: 29/07/2019

Questions referred by the Spanish Court:

1) Where an application for remission has been made and the Commission notifies its decision that the case has elements of fact and law similar to a previous case already resolved by the Commission or its decision that there is a comparable case pending resolution, is either of those decisions to be regarded as an act with legal content which is binding on the authorities of the Member State in which application for remission is made and is therefore open to appeal by the person seeking remission [Article 239 of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code] or requesting that there be no entry in the accounts (Article 220(2)(b) of the Community Customs Code)?

2) If it is not to be regarded as a Commission decision with binding legal content, is it then for the national authorities to evaluate whether there are comparable elements of fact or law in the case?

3) In the event of an affirmative reply, if that analysis has been made and led to the conclusion that such elements are not present, is it necessary to apply Article 905(1) of Commission Regulation (EEC) No 2454/93 of 2 July 1993 laying down provisions for the implementation of Council Regulation (EEC) No 2913/92 establishing the Community Customs Code and, therefore, must the Commission issue a decision with legal content binding on those national authorities?

4) In the event of an affirmative reply, does the use of the term ‘the Member State’ in Article 905(1) of Commission Regulation (EEC) No 2454/93 of 2 July 1993 laying down provisions for the implementation of Council Regulation (EEC) No 2913/92 establishing the Community Customs Code mean that every authority, including the judicial authority, is under an obligation to request the Commission to take a decision?

Conclusion:

The review of the Commission’s final COM(2008) decision 6317, of 3 November 2008, finding that it is justified to take import duties into account after the fact and that it is not justified to proceed with the remission of these duties in a case (REM File 03/07), under Article 220, paragraph 2, sub b), and Article 239 of the Council’s Regulation (EEC) No. 2913/92, of 12 October 1992, establishing the Community Customs Code, as amended by Regulation (EC) No. 2700/2000 of the Parliament and the Council, of 16 November 2000, did not reveal any evidence that would affect the validity of this decision.

Case C-680/17 Sumanan Vethanayagam, Sobitha Sumanan, Kamalaranee Vethanayagam v Minister van Buitenlandse Zaken

Member State: Netherlands

Date of Judgement: 29/07/2019

Questions referred by the Dutch Court:

Does Article 32(3) of the Visa Code preclude a sponsor, as an interested party in connection with the visa applications of applicants, from having a right of objection and appeal in his or her own name against the refusal of those visas?

Should representation, as regulated in Article 8(4) of the Visa Code, be interpreted as meaning that responsibility (also) remains with the represented State, or that responsibility is wholly transferred to the representing State, with the result that the represented State itself is no longer competent?

In the event that Article 8(4)(d) of the Visa Code allows both forms of representation as referred to in Question 2, which Member State must then be regarded as the Member State that has taken the final decision as referred to in Article 32(3) of the Visa Code?

Is an interpretation of Article 8(4) and Article 32(3) of the Visa Code according to which visa applicants can lodge an appeal against the rejection of their applications only with an administrative or judicial body of the representing Member State, and not in the represented Member State for which the visa application was made, consistent with effective legal protection as referred to in Article 47 of the Charter? Is it relevant to the answer to that question that the avenue of legal recourse offered should guarantee that an applicant has the right to be heard, that he has the right to bring proceedings in a language of one of the Member States, that the level of the charges or court fees for the procedures governing the lodging of objections and appeals are not disproportionate for the applicant and that there is a possibility of funded legal aid? Given the margin of discretion enjoyed by the State in matters relating to visas, is it relevant to the answer to this question whether a Swiss court has sufficient insight into the situation in the Netherlands to be able to provide effective legal protection?

Conclusion:

1) Article 32, paragraph 3, regulation (EC) 810/2009 of the European Parliament and the Council, of 13 July 2009, establishing a Community visa code, as amended by Regulation (EU) 610/2013 of the European Parliament and the Council, of 26 June 2013 , must be interpreted in the sense that it does not allow the reference person to file an appeal on his own behalf against a visa refusal decision.

2) Article 8, paragraph 4, under d), and Article 32, paragraph 3, of Regulation 810/2009, as amended by Regulation 610/2013, must be interpreted in the sense that where there is a bilateral representation agreement providing that the authorities Consular authorities of the Member State acting in representation are empowered to make decisions to refuse a visa, it is up to the competent authorities of that Member State to rule on appeals against a visa refusal decision.

3) A combined interpretation of Article 8, paragraph 4, under d), and Article 32, paragraph 3, of Regulation 810/2009, as amended by Regulation 610/2013, that the appeal against a visa refusal decision must be brought against the ETa representation, is consistent with the fundamental right to effective judicial protection.

Case C-40/17 - Fashion ID GmbH & Co.KG v Verbraucherzentrale NRW eV

Member State: Germany

Date of Judgement: 29/07/2019

Questions referred by the German Court:

Do the rules in Articles 22, 23 and 24 of Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data 1 preclude national legislation which, in addition to the powers of intervention conferred on the data-protection authorities and the remedies available to the data subject, grants public-service associations the power to take action against the infringer in the event of an infringement in order to safeguard the interests of consumers?

If Question 1 is answered in the negative: In a case such as the present one, in which someone has embedded a programming code in his website which causes the user’s browser to request content from a third party and, to this end, transmits personal data to the third party, is the person embedding the content the ‘controller’ within the meaning of Article 2(d) of Directive 95/46/EC of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data (OJ 1995 L 281, p. 31) if that person is himself unable to influence this data- processing operation?

If Question 2 is answered in the negative: Is Article 2(d) of Directive 95/46/EC on the protection of individuals with regard to the processing of personal data and on the free movement of such data to be interpreted as meaning that it definitively regulates liability and responsibility in such a way that it precludes civil claims against a third party who, although not a ‘controller’, nonetheless creates the cause for the processing operation, without influencing it?

Whose ‘legitimate interests’, in a situation such as the present one, are the decisive ones in the balancing of interests to be undertaken pursuant to Article 7(f) of Directive 95/46/EC? Is it the interests in embedding third-party content or the interests of the third party?

To whom must the consent to be declared under Articles 7(a) and 2(h) of Directive 95/46/EC be made in a situation such as that in the present case?

Does the duty to inform under Article 10 of Directive 95/46/EC also apply in a situation such as that in the present case to the operator of the website who has embedded the content of a third party and thus creates the cause for the processing of personal data by the third party?

Conclusion:

1. Articles 22 to 24 of Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data must be interpreted as not precluding national legislation which allows consumer-protection associations to bring or defend legal proceedings against a person allegedly responsible for an infringement of the protection of personal data.

2. The operator of a website, such as Fashion ID GmbH & Co. KG, that embeds on that website a social plugin causing the browser of a visitor to that website to request content from the provider of that plugin and, to that end, to transmit to that provider personal data of the visitor can be considered to be a controller, within the meaning of Article 2(d) of Directive 95/46. That liability is, however, limited to the operation or set of operations involving the processing of personal data in respect of which it actually determines the purposes and means, that is to say, the collection and disclosure by transmission of the data at issue.

3. In a situation such as that at issue in the main proceedings, in which the operator of a website embeds on that website a social plugin causing the browser of a visitor to that website to request content from the provider of that plugin and, to that end, to transmit to that provider personal data of the visitor, it is necessary that that operator and that provider each pursue a legitimate interest, within the meaning of Article 7(f) of Directive 95/46, through those processing operations in order for those operations to be justified in respect of each of them.

4. Articles 2(h) and 7(a) of Directive 95/46 must be interpreted as meaning that, in a situation such as that at issue in the main proceedings, in which the operator of a website embeds on that website a social plugin causing the browser of a visitor to that website to request content from the provider of that plugin and, to that end, to transmit to that provider personal data of the visitor, the consent referred to in those provisions must be obtained by that operator only with regard to the operation or set of operations involving the processing of personal data in respect of which that operator determines the purposes and means. In addition, Article 10 of that directive must be interpreted as meaning that, in such a situation, the duty to inform laid down in that provision is incumbent also on that operator, but the information that the latter must provide to the data subject need relate only to the operation or set of operations involving the processing of personal data in respect of which that operator actually determines the purposes and means.

Case C-38/18 - Criminal proceedings against Massimo Gambino and Shpetim Hyka

Member State: Italy

Date of Judgement: 29/07/2019

Question referred by the Italian Court:

Must Articles 16, 18 and 20(b) of Directive 2012/29/EU be interpreted as precluding the victim of a crime from having to give evidence again before the court sitting in a new composition when one of the parties to the proceedings, in accordance with Articles 511(2) and 525(2) of the Code of Criminal Procedure (as consistently interpreted by the case-law of the Supreme Court of Cassation), does not consent to that court reading the written record of the oral evidence previously given by that victim, in accordance with the audi alteram partem rule, before a different bench in the same proceedings?

Conclusion:

(1) Articles 16 and 18 of the European Parliament and Council Directive 2012/29/EU, of 25 October 2012, setting minimum standards for the rights, support and protection of victims of crime and replacing the framework decision 2001/220/ JAI of the Council, must be interpreted in the sense that they do not object to national legislation which, in a legal system such as the one at issue in the main case, provides for, in the event of a change in the composition of the trial panel before the victim was heard as a witness, a procedural scheme under which the person being prosecuted may object to the reading of the minutes of the victim’s hearing, thereby requiring the victim’s reiteration, particularly where the victim victim is a liticity witness whose testimony is likely to determine the innocence or guilt of the person being prosecuted.

Where, on the basis of this national legislation, the person being prosecuted requires a new hearing of the victim, the competent national authorities are obliged to carry out an assessment, in accordance with Article 22 of the 2012/29 Directive. to determine the specific needs of this victim and, if so, the extent to which the victim could benefit from the specific protection measures provided for in Articles 23 and 24 of this directive. In these circumstances, it is up to the national courts to ensure that these measures do not infringe on the fairness of the procedure within the meaning of Article 47, the second paragraph, of the Charter of Fundamental Rights of the European Union or the rights of the European Union defence within the meaning of Article 48, paragraph 2, of article.

2) The 2012/29 Directive does not prevent a Member State from adopting more protective measures on the hearing of victims during the criminal proceedings, provided, however, that these measures do not infringe on those fundamental rights.

Case C-354/18 - Radu-Lucian Rusu and Oana-Maria Rusu v SC Blue Air — Airline Management Solutions SRL

Member State: Romania

Date of Judgement: 29/07/2019

Questions referred by the Romanian Court:

1. Is the amount of EUR 400 provided for in Article 7(1)(b) of Regulation No 261/2004 ¹ intended to compensate primarily for the material damage, with the non-material damage being assessed pursuant to Article 12 thereof, or does Article 7(1)(b) of that regulation primarily cover the non-material damage, with the material damage being subject to Article 12 thereof?

2. Does an amount corresponding to a loss of salary which exceeds the amount of EUR 400 established by Article 7(1)(b) of that regulation fall within the concept of further compensation referred to in Article 12 thereof?

3. Under the second sentence of Article 12(1) of Regulation No 261/2004, ‘the compensation granted under this Regulation may be deducted from such compensation’. Should that provision be interpreted as leaving it to the national court’s discretion to deduct the amount awarded under Article 7(1)(b) of that regulation from the further compensation, or is that deduction compulsory?

4. In the event that the deduction of that amount is not compulsory, what are the elements on the basis of which the national court is to decide whether to deduct the amount referred to in Article 7(1)(b) from the further compensation?

5. Should the damage caused as a result of the non-payment of salary, owing to the fact that an employee was unable to be present at work by reason of his delayed arrival at his destination as a result of re-routing, be analysed from the perspective of fulfilment of the obligations provided for in Article 8 [of Regulation No 261/2004], or Article 12 [of that regulation], read in conjunction with Article 4 [thereof]?

6. Does an airline operator’s fulfilment of the obligation to provide assistance under Article 4(3) and Article 8 of Regulation No 261/2004 mean presenting a passenger with comprehensive information regarding all that passenger’s re-routing options as provided for in Article 8(1)(a), (b) and (c) of that regulation?

7. With whom does the burden of proving that passengers were re-routed at the earliest opportunity under Article 8 of Regulation No 261/2004 rest?

8. Does [Regulation No 261/2004] impose an obligation on passengers to make inquiries in order to identify other routes to their destination and to ask a company to find seats on those routes, or is the airline obliged to look, of its own motion, for the most advantageous option whereby a passenger may be transported to his destination?

9. Is the fact that passengers accepted an airline’s proposal offering them a flight on 11 September 2016, although they could assume that they would not be paid for the period during which they were absent from work, relevant for determining the damage suffered by those passengers?

Conclusion:

1) First, Article 7, paragraph 1, under b), Regulation (EC) No. 261/2004 of the European Parliament and the Council, of 11 February 2004, establishing common rules on compensation and assistance for passengers in the event of denied boarding and cancellation or significant delay of a flight, and repealing Regulation (EEC) No. 295/91, must be interpreted in the sense that the amount provided for in this provision is not intended to compensate for damages such as a loss of wages, second, that damage may cause the purpose of the supplementary compensation under Article 12, paragraph 1, of Regulation 261/2004, and thirdly, it is up to the referring court to determine and assess the various elements constituting that prejudice, as well as the extent of compensation for it, on the relevant legal basis.

2) Regulation 261/2004, and in particular its article 12, paragraph 1, second sentence, must be interpreted in the sense that it allows the competent national judge to make the deduction of compensation granted under this settlement of compensation additional, but does not require it to do so, as the regulation does not impose conditions on the competent national judge on the basis of which he could make this deduction.

3) Article 4, paragraph 3, of Regulation 261/2004, read in combination with Article 8, paragraph 1, of this regulation, must be interpreted in the sense that it requires the actual air carrier to present full information to the passengers concerned on all possibilities provided for in the second of these provisions, as the passengers in question have no obligation to actively contribute to the search for information to this effect.

4) Section 8, paragraph 1, under b), Regulation 261/2004 must be interpreted in the sense that, for the purposes of this provision, the burden of proving that the re-route was carried out as soon as possible rests on the actual air carrier.

Case C-451/18 - Tibor-Trans Fuvarozó és Kereskedelmi Kft. v DAF TRUCKS N.V.

Member State: Hungary

Date of Judgement: 29/07/2019

Questions referred by the Hungarian Court:

Should the rule on special jurisdiction laid down in Article 7(2) of Regulation (EU) No 1215/2012 of the European Parliament and of the Council on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters be interpreted as meaning that the court of a Member State has jurisdiction as the court for the ‘place where the harmful event occurred’, where:

the domicile or principal place of economic activity or of the financial interests of the applicant who claims to have suffered the damage or loss is in the State in question;

the claim brought by the applicant ― which is against a single defendant, namely a truck manufacturer domiciled in another Member State ― is based on an infringement [established] by [a decision of] the European Commission under Article 101(1) of the Treaty on the Functioning of the European Union (formerly Article 81(1) of the EC Treaty), consisting of collusive arrangements on pricing and gross price increases in the European Economic Area, and the decision is addressed to other parties in addition to the defendant;

the applicant only purchased trucks manufactured by other undertakings involved in the cartel;

there is nothing to show that any of the meetings that were found to restrict competition were held in the State of the court seised;

the applicant generally purchased the trucks ― in its view, at distorted prices ― in the State of the court seised, and to that end it entered into financial leasing agreements involving definite transfer of ownership with undertakings that operated in that State but, according to its own statements, the applicant negotiated directly with the vehicle dealerships, and the lessor added its own profit margin and the leasing costs onto the prices agreed by the applicant, and the right of ownership over the vehicles was transferred to the applicant on completion of the leasing agreement, when it expired?

Conclusion:

Article 7(2) of Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, must be interpreted as meaning that, in an action for compensation for damage caused by an infringement of Article 101 TFEU, consisting, inter alia, of collusive arrangements on pricing and gross price increases for trucks, ‘the place where the harmful event occurred’ covers, in a situation such as that at issue in the main proceedings, the place where the market which is affected by that infringement is located, that is to say, the place where the market prices were distorted and in which the victim claims to have suffered that damage, even where the action is directed against a participant in the cartel at issue with whom that victim had not established contractual relations.

Case C-433/18 ML v OÜ Aktiva Finants

Member State: Finland

Date of Opinion: 29/07/2019

Questions referred by the Finnish Court:

Is the procedure for granting leave for further consideration which is part of the national system of appeals compatible with the effective rights of appeal that are guaranteed for both parties in Article 43(1) of Regulation No 44/2001 where an appeal is lodged against the decision of a district court which relates to the recognition or enforcement of a judgment under Regulation No 44/2001?

In the procedure for granting leave for further consideration, are the requirements in relation to a procedure in contradictory matters within the meaning of Article 43(3) of Regulation No 44/2001 satisfied if the respondent is not heard in relation to the appeal before the decision on leave is taken? Are they satisfied if the respondent is heard before the decision on leave for further consideration is taken?

Does the fact that the appellant may be not only the party who has applied for enforcement and whose application has been refused, but also the party against whom enforcement has been applied for when that application has been allowed, have any significance for the above interpretation?

Conclusion:

1) Article 43, paragraph 1, of Regulation (EC) No. 44/2001 of the Council, of 22 December 2000, concerning judicial competence, recognition and enforcement of civil and commercial decisions, allows for a procedure for authorisation to prosecute proceeding, such as the one at issue in the main proceedings, provided that, from a substantial point of view, the grounds for non-performance in sections 34 and 35 of this regulation may be invoked and taken into account on the grounds for leave to prosecute proceedings and that, from a procedural point of view, decisions to refuse to prosecute the proceedings are necessarily reasoned.

2) Article 43, paragraph 3, of Regulation 44/2001 must be interpreted in the sense that a procedure for authorisation to proceed with the proceedings, such as that at issue in the main proceedings, does not ignore the requirement for an adversarial procedure as long as the decision adopted at the stage of authorization to proceed with the proceedings is not, as such, likely to harm the interests of the opposing party.

Case C-421/18 Ordre des avocats du barreau de Dinant v JN

Member State: Belgium

Date of Opinion: 29/07/2019

Question referred by the Belgian Court:

Is the action brought by a Bar Association seeking an order that one of its members pay the annual professional fees owed to it a matter “relating to a contract” within the meaning of Article 7(1) of Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters?

Conclusion:

Article 7, point 1, of Regulation 1215/2012 of the European Parliament and the Council, of 12 December 2012, concerning judicial competence, recognition and enforcement of civil and commercial decisions, must be interpreted in the sense that an action on an obligation to pay annual premiums consisting mainly of insurance premiums and arising from a decision by an order of counsel, which is the responsibility of the referring court to verify, and to which counsel are required to register under national law, must be considered to be within the concept of “contractual matter” within the meaning of that section.

Case C-435/18 Otis Gesellschaft m.b.H. and Others v Land Oberösterreich and Others

Member State: Austria

Date of Opinion: 29/07/2019

Question referred by the Austrian Court:

Are Article 85 TEC, Article 81 EC and Article 101 TFEU to be interpreted as meaning that, in order to maintain the full effectiveness of those provisions and the practical effectiveness of the prohibition resulting from those provisions, it is necessary that compensation for losses may also be claimed from members of a cartel by persons who are not active as suppliers or customers on the relevant product and geographic market affected by a cartel, but who grant loans to buyers of the products offered on the market affected by the cartel under preferential terms as funding bodies within the scope of statutory provisions, and whose loss lies in the fact that the loan amount granted as a percentage of the product costs was higher than what it would have been without the cartel agreement, which means that they were unable profitably to invest those amounts?

Conclusion:

Article 101 TFUE must be interpreted in the sense that persons who do not operate as a supplier or as a buyer in the market concerned by an agreement may also act as the responsibility of the cartel members. This includes state lenders that provide subsidized loans to purchasers of cartel members and whose harm is that the amount lent was higher, up to a percentage of the costs of the product, than it would have been in the absence of a collusive agreement, since they have not been able to place these amounts at the market rate or allocate them to the repayment of outstanding loans.