For the half-year to 31 December 2014, the IPKat's regular team is supplemented by contributions from guest bloggers Rebecca Gulbul, Lucas Michels and Marie-Andrée Weiss.

Regular round-ups of the previous week's blogposts are kindly compiled by Alberto Bellan.

Wednesday, 9 April 2014

Should EU Courts know national statute law and case law? A comparative reprise

The Court of Justice of the European Union (CJEU) decision in the NLC case [Case C-530/12 P OHIM v National Lottery Commission, on which see the earlier IPKat note here; Advocate General Bot’s Opinion, here] attracted a number of comments as to how EU bodies should treat national laws when they are of relevance within EU and national proceedings. The debate is thrilling and rather surprising, due to the different approaches taken in different EU jurisdictions. Some further reflection on this topic is very likely needed.

In the case mentioned above, two Italians challenged the validity of the UK National Lottery Commission’s Community trade mark No 4800389 on the basis of an allegedly earlier copyright under what is now Article 53(2(c) of Regulation 207/2009 (CTMR). This reads:

“A Community trade mark shall also be declared invalid on application to the Office or on the basis of a counterclaim in infringement proceedings where the use of such trade mark may be prohibited pursuant to another earlier right under … national law governing its protection, and in particular … a copyright”.

''Must delve into Neapolitan
law ...", says Tolomeo
The claimants tried to demonstrate the existence of their earlier copyright, obtained via a 1986 agreement between one of them and a designer, which purportedly assigned the copyright in a sign identical to that covered by NLC’s trade mark. The agreement reported a post office stamp, which dated it back to 1986. However, the stamp’s date was a Sunday [a day in which Italian post offices are closed] and the copyright duration recorded in the agreement was stated to be 70 years after the author shuffles off his or her mortal coil [note the anacrochronism: in 1986, Italian copyright still lasted for just 50 years]. In the NLC’s view, those anomalies demonstrated that the agreement was a complete fake. On their side, the claimants alleged that OHIM could not disregard the content and the date of the agreement as, under the Italian law recalled under Article 53(2)(c) CTMR, the assignment would have constituted full proof until declaration of forgery.

Now, all medium-to-low committed Italian students in the first year of their University studies know that the claimants’ submission is completely false (as a matter of principle, under Italian law the probative value of agreements can always be challenged before courts without alleging forgery, apart from certain special cases not occurring in the NLC proceedings). Nonetheless, in the absence of specific objections from NLC as to the Italian law’s interpretation, both the Cancellation Division and the Board of Appeal accepted the claimants’ allegations because national law and its interpretation had to be considered as mere fact, and thus for the parties to demonstrate its applicable provisions and interpretation. 

Both the General Court (Case T-404/10) and the CJEU ruled to the opposite effect and stated that, although Rule 37 of the CTMR Implementing Regulation imposes on the claimant for invalidity the burden of providing 
“particulars showing that he satisfies the necessary conditions ... in order to be able to have the use of a Community trade mark prohibited by virtue of an earlier right" 
under national law and "also particulars establishing the content of that law", OHIM bodies and Courts have a duty to conduct a full review of the national law particulars submitted by parties, obtaining information about the national law of the Member State concerned on their own motion for the purposes of assessing the accuracy of the facts adduced or the probative value of the documents submitted.  The CJEU however set aside the General Court's ruling as the latter was based on an Italian Supreme Court’s decision [on the exciting topic of the probative value of post office stamps under Italian law] which the General Court found all by itself, but failing to give the parties a chance to address this ruling during the proceedings and thus infringing their right to be heard.

Ever since he too was a medium-to-low committed university student, this Kat grew up believing that “iura novit curia” [“the court knows the law", as explained here] and, consequently, that it was reasonable for EU bodies to have the duty to investigate independently and to apply national law and case law -- just as Italian judges are required to do when they apply foreign law in Italian proceedings (unless public policy concerns are relevant, as would happen, eg, in the case of polygamous marriages). From his tremendous Erasmus experience this Kat recalls that the same principle applies in the lovely jurisdiction of France, where it is for the national judges to determine the content of foreign law in French proceedings. Nonetheless, this interpretation of “iura novit curia” is not that popular [and perhaps not even desirable] in EU and other Member States, observes Katfriend and respected EU trade mark lawyer Verena Von Bomhard, left, (Hogan Lovells Alicante). Says Verena:

“Foreign law is treated as a matter of fact in some national proceedings, including Germany. So iura novit curia does not apply there. That OHIM generally treats - or has treated - national law like "foreign", ie a matter of fact, is only logical, also with a view to the equality of arms on either side: an opponent, with a few ticks, can invoke nonregistered rights from around the EU. Imagine the applicant now has to engage local counsel from 28 member states to assess whether the law exists and supports the opponent’s claim. It is only fair and appropriate that opponents have to set out the national law relied upon in full - and the new decision gives rise to huge concern from a practical perspective”.

A similar take comes from another Katfriend, most likely from Holland:

As to ‘the court knows the law’: the court knows its own law, so an EU court knows EU law in the same way as a NL court knows NL law. An EU court does not necessarily know non-EU law like national law. Foreign law is not law that is deemed known to a court, but a matter of fact, so that a court may not simple assume such a ‘fact’ without allowing the parties to provide evidence”.

As to case law (which in the common law system is nothing but law that has been developed by judges) and right to be heard in UK, Kat Darren S takes the floor:

“I have heard certain barristers get quite upset when judges refer in their judgments to cases that were not discussed at trial, without having heard submissions from the parties on those cases. But that of course means that it does happen. I suppose the thing is that the legal point that one may extract from an earlier case may not be clear and unambiguous. So there is a danger that if the judges just read it privately, they may discern something from it different from if they had heard argument from both sides as to what the case is supposed to mean. At least I think that is why barristers dislike the practice. I was not aware of the maxim Iura novit curia but i see that it is ‘applied principally in civil law systems’. Such as Italy, presumably…”

The debate reveals key differences in the conceptions of foreign law and case law, as well as to the role of judges themselves as between the various EU Member States. In the absence of any provision which explicitly lays down the correct code of conduct for EU judges, which would be the preferable model among those adopted in Member States?

Following on from the CJEU’s ruling it appears that an intermediate solution has its attractions: national law and case law can be freely investigated by the courts, but the parties should have the right to discuss the outcome of such searches during the proceedings, in compliance with their right to be heard. As a matter of principle, the General Court stated that the reason why national law and case law should not be considered as mere fact relies on their easy accessibility: it would take not more than half an hour for even an inexpert Italian trainee to find out that the claimants’ interpretation of Italian probative regime in the NLC case is as fake as NLC thinks the 1986 assignment agreement was, so why limit the opportunities for reputable judges to dig into national provisions in order to avoid ridiculous statements on national laws such as those heard by the Cancellation Division and Board of Appeal?

Examiners and judges have to pursue decisions that are just, with at least  the same commitment as they put into safeguarding parties’ right to be heard. In cases where parties put forward malicious interpretations of national law, this final target could require a certain degree of freedom for the judging body to full review and investigate national law and case law. Wouldn’t this be the natural approach for bodies like OHIM, which this Kat loves to imagine as being populated with valuable jurists who originate from all the EU's jurisdictions?

What do readers think?

6 comments:

Anonymous said...

What do readers think about what ?

Wouter Pors said...

Very good, the EU institutions learn to apply the rule of ius curia novit, at least for the EU member states!

The alleged contribution from Holland could not have come from a learned Katfriend. The first textbook on procedural law that students get to see indeed also quite clearly says: ius curia novit. Articles 67 and 68 of the Dutch Code of Civil Procedure provide how the court should obtain this knowledge, with a reference to the 1968 European Convention on information on foreign law and the more recent Regulation (EC)1/2003, which only relates to informationon competition law issues. The District Attorney in The Hague is repsonsible for the coordination of questions and answers.

Article 67 indeed also provides that the parties have a right to be heard about the questions that the court will pose, whereas article 68 provides thah they can comment on the answers obtained.

That being said, courts do like to get some information from the lawyers on the content of foreign law, because that makes it easier for the court to get the additional information. Besides, if such information is not contested by the other party, the court tends to accept it, even though that does not really take away its obligation to make its own inquiries.

So, Holland seems sato be as civilized as Italy and France, and indeed observes the 1968 Convention.

Wouter Pors
Bird & Bird The Hague

Alberto Bellan said...

Wouter, thank you for your comment! What is surprising here is that not only this principle diverges between Member State Laws, but also within the EU system, depending on the field. Astonishing.

Anonymous @12.47: you won't believe it, but I've just performed a reading comprehension test. (likely failing)

The iPuffin said...

The difference may perhaps lie with the role of the judge - ie the inquisitorial v the adversarial system.

The EU situation is clearly adversarial, and whilst the balance of proving a point of fact begins with the party seeking to rely upon it, if the other side do not contest the point then they have themselves to blame.

Foreign law is a question of fact which is no different from any other fact a party seeks to adduce. In an adversarial case, it is not open to a judge to research and rely upon the same without giving the representatives the right to comment.

Alberto Bellan said...

Thank you for your comment, iPuffin.

The adversarial v inquisitorial was also one of my EIPIN friends' point, when we discussed the issue some days ago. Still, once again: what would be better for the EU judging bodies to adopt, considering the peculiarities of the system?

Anonymous said...

adversarial v inquisitorial

what about a mix system, that shows features of both adversarial and inquisitorial systems. An adversarial approach with some inquisitorial characteristics, as realized in some national systems.

"In cases where parties put forward malicious interpretations of national law, this final target could require a certain degree of freedom for the judging body to full review and investigate national law and case law.

I'm a big supporter of the principle: "facts are for the parties, a judge can always fill in legal grounds."

I think, there is an agreement between most of European countries regulating how national judges should consult foreign law.

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