European Court of Justice
All the material on this page is taken from press releases issued by the European Court of Justice. I have only chosen those matters which are likely to be of most use to me. Significant cases will be reviewed and discussed in regular postings.
8 September 2010
The public monopoly of the organisation of sporting bets and lotteries in Germany does not pursue the objective of combating the dangers of gambling in a consistent and systematic manner
Source: Press Release (for full text click here)
The Court of Justice finds, first, that the German rules on sporting bets constitute a restriction on the freedom to provide services and the freedom of establishment. Nevertheless, the Court recalls that such a restriction may be justified by imperative reasons in the public interest, such as preventing incitement to squander on gambling and combating gambling addiction. However, the national measures for attaining those objectives must be suitable for attaining them and must be limited to the restrictions necessary for that purpose.
In that regard, the Court considers that, with a view to channelling the desire to gamble and the operation of games into a controlled circuit, Member States are free to establish public monopolies. In particular, such a monopoly is likely to overcome the risks connected with the gaming industry more effectively than a system under which private operators are authorised to organise bets subject to compliance with the relevant legislation.
Next, the Court observes that the fact that some games of chance are subject to a public monopoly whilst others are subject to a system of authorisations issued to private operators cannot, in itself, call into question the consistency of the German system as those games have different characteristics.
However, the Court of Justice finds that, having regard to the findings which they made in those cases, the German courts are right to take the view that the German rules do not limit games of chance in a consistent and systematic manner. First, the holders of public monopolies carry out intensive advertising campaigns with a view to maximising profits from lotteries, thereby departing from the objectives justifying the existence of those monopolies. Secondly, with regard to games of chance such as casino games and automated games, which do not fall within the public monopoly but carry a greater risk of addiction than games which are subject to that monopoly, the German authorities carry out or tolerate policies designed to encourage participation in those games. In such circumstances, the preventive objective of that monopoly can no longer be pursued, so that the monopoly ceases to be justifiable.
The Court of Justice further notes that national rules concerning that monopoly, held to be contrary to the fundamental freedoms of the Union, cannot continue to apply during the time necessary to bring it into conformity with Union law.
Finally, the Court of Justice recalls that Member States have a broad discretion in determining the level of protection against the dangers emanating from games of chance. Thus, and in the absence of any Community harmonisation in the matter, Member States are not required to recognise authorisations issued by other Member States in that area. For the same reasons, and having regard to the risks posed by games of chance on the internet in comparison with traditional games of chance, Member States may also prohibit the offering of games of chance on the internet.
22 September 2009
ADVOCATE GENERAL POIARES MADURO CONSIDERS THAT GOOGLE HAS NOT INFRINGED TRADE MARK RIGHTS BY ALLOWING ADVERTISERS TO BUY KEYWORDS CORRESPONDING TO REGISTERED TRADE MARKS
Advocate General’s Opinion in Joined Cases C-236/08, C-237/08 and C-238/08 re Google France & Google Inc. v Louis Vuitton Malletier, Google France v Viaticum & Luteciel and Google France v CNRRH, Pierre-Alexis Thonet, Bruno Raboin & Tiger, franchisée Unicis
“Google’s liability may be engaged for featuring content in AdWords that involves trade mark infringement.
Under Community trade mark rules (First Council Directive 89/104/EEC and Council Regulation (EC) No 40/94), the owner of a trade mark can prohibit others from using the sign in advertising.
The E-Commerce Directive (2000/31/EC) exempts, under certain conditions, information society service providers from liability for the information stored at the request of a recipient of the service. The exemption applies where: (i) there is an information society service; (ii) that service consists in the storage of information, provided by the recipient of the service, at the request of that recipient; and (iii) the provider of the service has no actual knowledge of the illegal nature of the information, or of facts which would make such illegality apparent, and duly acts to remove it upon becoming aware of its illegality.
Google allows internet users free access to the Google search engine. On entering keywords into that search engine, users are presented with a list of natural results selected and ranked according to their relevance to the keywords, determined by objective criteria.
Google also operates an advertising system called ‘AdWords’, which enables ads to be displayed, alongside natural results, in response to keywords. These ads typically consist of a short commercial message and a link to the advertiser’s site; they are differentiated from natural results by their placement and design. Through AdWords, Google allows advertisers, in return for payment, to select keywords so that their ads are displayed to internet users in response to the entry of those keywords in Google’s search engine. Google supports its search engine with its income from AdWords.
In France, legal proceedings have been initiated by trade mark owners against Google as to the legality of the use, in the Adwords advertising system, of keywords corresponding to trade marks. It has been established in those proceedings that entering certain trade marks into Google’s search engine triggered the display of ads for sites offering counterfeit versions of the products covered by the trade mark or identical or similar products of competitors.
The Cour de cassation, called upon to settle the issue at last instance, has asked the Court of Justice whether Google has committed a trade mark infringement by making available such keywords to advertisers and if the company can be held liable for the content featured in AdWords.
In his Opinion delivered today, Advocate General Poiares Maduro suggests that Google has not committed a trade mark infringement by allowing advertisers to select, in AdWords, keywords corresponding to trade marks. He highlights that the use of the trade marks is limited to the selection of keywords which is internal to AdWords and concerns only Google and the advertisers. When selecting keywords, there is thus no product or service sold to the general public. Such a use cannot therefore be considered as being a use made in relation to goods or services identical or similar to those covered by the trade marks. Similarly, advertisers themselves do not commit a trade mark infringement by selecting in Adwords keywords corresponding to trade marks.
By contrast, the Advocate General finds that Google, by displaying ads in response to keywords corresponding to trade marks, establishes a link between those keywords and the sites advertised which sell products identical or similar to those covered by the trade marks. The very same link is established between keywords which correspond to trade marks, and the sites displayed as natural results.
However, in the view of the Advocate General, such a link also does not constitute a trade mark infringement. In effect, the mere display of relevant sites in response to keywords is not enough to establish a risk of confusion on the part of consumers as to the origin of goods or services. Internet users are aware that not only the site of the trade mark owner will appear as a result of a search in Google’s search engine and sometimes they may not even be looking for that site. These users will only make an assessment as to the origin of the goods or services advertised on the basis of the content of the ad and by visiting the advertised sites; no assessment will be based solely on the fact that the ads are displayed following the entry of keywords corresponding to trade marks.
The Advocate General then recalls that trade mark rights cannot be construed as classical property rights enabling the trade mark owner to exclude any other use. Accordingly, internet users’ access to information concerning the trade mark should not be limited to or by the trade mark owner even if it involves a trade mark which has a reputation. He notes that many of the sites reached by internet users by entering keywords are perfectly legitimate and lawful even if they are not the sites of the trade mark owner.
Mr. Poiares Maduro also rejects the notion that Google’s actual or potential contribution to a trade mark infringement by a third party should constitute an infringement in itself. He opines that instead of being able to prevent, through trade mark protection, any possible use – including many lawful and even desirable uses –, trade mark owners would have to point to specific instances giving rise to Google’s liability in the context of illegal damage to their trade marks.
In this context, the Advocate General finds that both Google’s search engine and AdWords constitute information society services. He adds that service providers seeking to benefit from a liability exemption under the E-Commerce Directive should remain neutral as regards the information they carry or host.
However, whilst the search engine is a neutral information vehicle applying objective criteria in order to generate the most relevant sites to the keywords entered, that is not the case with Adwords where Google has a direct pecuniary interest in internet users clicking on the ads’ links.
Accordingly, the liability exemption for hosts provided for in the E-Commerce Directive should not apply to the content featured in AdWords.
Please note: The Advocate General’s Opinion is not binding on the Court.”
9 July 2009
PASSENGERS ON AN INTRA-COMMUNITY FLIGHT MAY BRING THEIR CLAIMS FOR FLAT-RATE COMPENSATION IN THE EVENT OF CANCELLATION BEFORE THE COURT OF THE PLACE OF DEPARTURE OR ARRIVAL OF THE AIRCRAFT
Judgment of the Court of Justice in Case C-204/08 – Rehder v. Air Baltic
“Neither the location of the head office of the company operating the flight nor the place where the air transport contract was entered into is conclusive with regard to the choice of the court having jurisdiction.
A claim for compensation following the cancellation of a flight provides the Court of Justice with an opportunity to define the rules governing jurisdiction in the field of air transport.
The regulation on compensation and assistance to air passengers [Regulation (EC) No 261/2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights (OJ 2004 L 46, p. 1] provides, in the event of cancellation of a flight, that passengers may receive flat-rate compensation of between EUR 250 and EUR 600. Where an airline refuses to pay the flat-rate compensation, the question then arises whether, in the case of a flight within the Community, the passenger concerned, under the Community regulation on jurisdiction, may bring the matter before a court in another Member State in addition to the court within the territorial jurisdiction of which that airline has its head office [Regulation (EC) No 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (OJ 2001 L 12, p. 1].
Peter Rehder, who resides in Munich, booked a flight from Munich to Vilnius with Air Baltic, the head office of which is in Riga (Latvia). About 30 minutes before the scheduled time of departure from Munich, passengers were informed that their flight had been cancelled. After his booking had been changed by Air Baltic, Mr Rehder took a flight to Vilnius via Copenhagen.
By an application lodged with the Amtsgericht Erding, the court having territorial jurisdiction over Munich airport, Mr Rehder requested that Air Baltic be ordered to pay him compensation in the amount of EUR 250 in accordance with the regulation on compensation and assistance to air passengers.
Taking the view that air transport services are provided at the aircraft’s place of departure, which implies that the place of performance of the contractual obligation, within the terms of the regulation on jurisdiction, is that of the airport of departure, the Amtsgericht Erding held that it had jurisdiction to deal with Mr Rehder’s claim for compensation.
Following a successful appeal by Air Baltic to have that decision set aside, on the ground that jurisdiction lies with the court within the territorial jurisdiction of which the head office of the airline company is situated, Mr Rehder subsequently brought the matter before the Bundesgerichtshof. The latter court has expressed uncertainty as to whether, in legal disputes arising from international air transport contracts, the special jurisdiction in respect of contractual obligations should not generally be concentrated in a single place of performance.
In its judgment delivered today, the Court of Justice finds that, where there are several places at which services are provided in different Member States, it is necessary to identify the place which provides the closest connecting factor between the contract in question and the court having jurisdiction, in particular the place where, pursuant to that contract, the main provision of services is to be carried out.
The place of the head office or the principal place of establishment of the airline concerned does not have the necessary close link to the contract. The operations and activities undertaken from that place, such as, in particular, the provision of an adequate aircraft and crew, are logistical and preparatory measures for the purpose of performing the contract relating to air transport and are not services the provision of which is linked to the actual content of the contract. The same is true with regard to the place where the contract for air transport is concluded and the place where the ticket is issued.
The services the provision of which corresponds to the performance of the obligations arising from a contract to transport passengers by air are the checking-in and boarding of passengers, the on-board reception of those passengers at the place of take-off agreed in the transport contract in question, the departure of the aircraft at the scheduled time, the transport of the passengers and their luggage from the place of departure to the place of arrival, the in-flight care of the passengers and, finally, the disembarkation of the passengers in safe conditions at the place of landing and at the time scheduled in that contract.
The only places which have a direct link to those services, provided in performance of obligations linked to the subject-matter of the contract, are those of the departure and arrival of the aircraft, the ‘places of departure and arrival’ having to be understood as those agreed in the contract of carriage in question, made with one sole airline which is the operating carrier.
Each of those two places has a sufficiently close link of proximity to the material elements of the dispute and, accordingly, ensures the close connection between the contract and the court having jurisdiction. Consequently, a claim for compensation following the cancellation of a flight may be brought, as a matter of choice on the part of the passenger concerned, before the court having territorial jurisdiction over the place of departure or of arrival.”
Click here for the full text of the judgment.
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